Joint Committee on Statutory Instruments Fifteenth Report


Note by the Committee's legal advisers

THE NATIONAL HEALTH SERVICE (GENERAL OPHTHALMIC SERVICES) AMENDMENT (NO. 2) REGULATIONS 2001 (S.I. 2001/3739)

Defective drafting points

1 In new regulation 7A(1)(c) the words "the references given in accordance with paragraph 8 of [Schedule 2]" appear defective. The reference should presumably be to paragraph 9. But even then that paragraph does not provide for the giving of references: rather it requires an applicant to give details of referees. (The latter comment also applies to regulation 4(c) of, and the new regulation 5ZA inserted by, S.I. 2001/3741.)

2 In new regulation 7A(2)(e) the reference to regulation 7D(13) should be to regulation 7D(11).

3 New regulation 7A(3)(h) requires the Health Authority to take into consideration "whether [the applicant] was at the time, has in the preceding six months been, or was at the time of the originating events, a director of a body corporate which was refused admittance to, conditionally included, removed or contingently removed from [lists] , or is currently suspended from such lists¼". It is not clear to what period the words "in the preceding six months" refer. "Has" implies it is the six months preceding the Health Authority's consideration of the application, but the intention may be to refer to the six months preceding the body corporate's conditional inclusion, removal, or suspension. But if that is the intention "has" should read "had". (The same point applies to new regulation 9B(2)(h), (4)(g) and (6)(h), to regulations 6(4)(h), 11(1)(h), (4)(g) and (6)(h) of S.I. 2001/3740, and to regulations 7B(2)(h), (4)(g) and (6)(h), and 18EE(3)(h) inserted by S.I. 2001/3742.)

4 In the same sub-paragraph the words "he was at the time" (where they first occur) "a director of a body corporate which¼.. is currently suspended" do not make sense. (The same point applies to new regulation (2)(g) and (4)(g), to regulations 6(4)(h) and 11(2)(h), (4)(g) and (6)(h) of S.I. 2001/3740, and to regulations 7B(2)(h), (4)(g) and (6)(h), and 18EE(3)(h) inserted by S.I. 2001/3742.)

5 New regulation 7B(1) comprises a single sentence, divided into 11 sub-paragraphs, occupying a whole page of the instrument. Sub-paragraphs (b) and (g) each occupy 7 lines of print and require the reader to follow a complex set of alternatives. New regulation 7B(1) could, and should, have been drafted in a more digestible form, to aid comprehension. (Similar point on 3740 and 3742).

6 New regulation 7B(1)(a) and (b) refers to "legal proceedings that are criminal proceedings in the United Kingdom or, if brought elsewhere in the world, would be criminal proceedings if brought in the United Kingdom". The italicised words appear to refer to proceedings of a type which are classified as civil in another country but criminal here. There seems no need for this complex provision. What appears to be required (and may well be all that was intended) is a reference to proceedings in respect of conduct which, if it had occurred in the United Kingdom, would constitute a criminal offence here. (The same point applies to regulation 7(1)(a) and (b) of S.I. 2001/3740, to regulation 5ZB(1)(a) inserted by S.I. 2001/3741, and to regulation 18EF(1)(a) and (b) inserted by S.I. 2001/3742.)

7 New regulation 7B(1)(b) also refers to "a body corporate of which the [practitioner] is, has in the preceding six months been, or was to his knowledge a director at the time of the originating events". It is not clear why the italicised words were included, still less why they appear in this sub-paragraph but not in similar provisions elsewhere in the instrument. (A similar point applies to regulation 4(2)(l) and (5) of S.I. 2001/3740.)

8 In the same sub-paragraph, the expression "is, has¼been, or was¼. a director at the time of the originating events", does not make sense. Presumably the italicised words should have preceded "a director".

9 New regulation 7B(1)(c) refers to investigations relating to a practitioner in his professional capacity that "if successful" would be likely to lead to his removal from the list. "Successful" does not seem apt in respect of the outcome of an investigation. Presumably "adverse" was intended. (The same point applies to regulation 7(1)(c) of S.I. 2001/3740, to regulation 5ZB(1)(b) inserted by S.I. 2001/3741, and to regulation 18EF(1)(c) inserted by S.I. 2001/3742.)

10 New regulation 7B(1)(f) refers to "an appeal by the ophthalmic medical practitioner or optician against a decision of a Health Authority to refuse to admit an ophthalmic medical practitioner or optician to its list, or to conditionally include in or to contingently remove from, or to remove from any list kept by a Health Authority". The italicised words are presumably not intended to refer to a person other than the first mentioned practitioner, in which case they should simply have read "him". (A similar point applies to regulation 7(1)(f) of S.I. 2001/3740 and to regulation 18EF(1)(f) inserted by S.I. 2001/3742.)

11 New regulation 7B(1)(g) refers to "an appeal by a body corporate of which the practitioner is, has been or was a director against a decision of a Health Authority to refuse to admit an ophthalmic medical practitioner or optician to its list". Presumably the italicised words should have referred to the body corporate. (A similar point applies to regulation 7(1)(g) of S.I. 2001/3740 and to regulation 18EF(1)(g) inserted by S.I. 2001/3742.)

12 The reference to the ophthalmic medical practitioner or optician in sub-paragraph (k) of new regulation 7B(1) duplicates paragraph (j). (A similar point applies to regulation 7(1)(k) of S.I. 2001/3740 and to regulation 18EF(1)(k) inserted by S.I. 2001/3742.)

13 New regulation 7B(2) and (4) provides that a Health Authority may only defer consideration under paragraph (1) until the outcome of the relevant event mentioned in paragraph (1) is known. This does not make sense in relation to sub-paragraphs (d) and (e) of paragraph (1) which refer to the cases where a practitioner or a body corporate is suspended. (The same point applies to regulation 7(2) and (4) of S.I. 2001/3740, to regulation 5ZB(2) and (4) inserted by S.I. 2001/3741, and to regulation 18EF(2) and (4) inserted by S.I. 2001/3742.)

14 New regulation 7B(4) requires the Health Authority, once the outcome of the relevant event is known, to notify the practitioner that he must update his application within 28 days (or such longer period as the Health Authority may agree) with any relevant information before it can be considered. It is not clear when the period of 28 days begins. This should have been specified. Given that the Health Authority must, ex hypothesi, be aware of the outcome, it is not clear what additional information this provision requires the applicant to provide. (The same point applies to regulation 7(4) of S.I. 2001/3740, to regulation 5ZB(4) inserted by S.I. 2001/3741, and to regulation 18EF(4) inserted by S.I. 2001/3742.)

15 New regulation 7D(14)(a), read with paragraph (13), requires a Health Authority to disclose to certain persons or bodies "identifying details" of the practitioner. Presumably matters such as height and colour of hair are not intended to be included, but it is not clear what details are to be disclosed under these paragraphs. (The same point applies to regulation 16(4)(a) of S.I. 2001/3740 and to regulation 18M(14) inserted by S.I. 2001/3742.)

16 New regulation 7D(15)(b) specifies as one of the bodies to which information must be disclosed, "a body corporate of which [the practitioner] is a director". This is unexpectedly wide and it is not clear how the Health Authority could be expected to know of which corporations the practitioner is a director. Presumably this should have referred to a Health Authority which has on any of its lists a body corporate of which the practitioner is a director. (The same point applies to regulation 18M(15) inserted by S.I. 2001/3742.)

17 New regulation 7D(16) reads "The Health Authority shall notify any body of the information specified in paragraph (14) if it can establish that it is considering employing the ophthalmic medical practitioner or optician and it receives a written request (including an electronic request) to do so". In the phrase "if it can establish that" it is not clear to whom "it" refers nor what is meant by "can establish". It is also surprising that the provision does not extend to prospective employers who are individuals (contrast new regulation 9D(3)). (Some or all of these points also apply to regulation 16(3) of S.I. 2001/3740, to regulation 5ZD(16) inserted by S.I. 2001/3741, and to regulation 18M(16) inserted by S.I. 2001/3742.)

18 New regulation 7D(17) requires the Health Authority to send to the practitioner a copy of any information about him provided to specified persons or bodies, "and any correspondence with those persons". This should clearly have specified more precisely the correspondence that is intended to be the subject of the requirement. (The same point applies to regulation 16(5) of S.I. 2001/3740, to regulation 5ZD(17) inserted by S.I. 2001/3741, and to regulation 18M(17) inserted by S.I. 2001/3742.)

19 In new regulation 9B(1), (3) and (5) the references to paragraph 6 of Schedule 2 should presumably be to paragraph 7.

20 The meaning of the phrases "the nature of the incidents of any fraud case" and "other incidents of fraud cases" in new regulation 9B(4)(a) and (c), respectively, is not clear, nor is it apparent what these words in sub-paragraph (c) add to sub-paragraph (a). (The same points apply to regulation 11(4) of S.I. 2001/3740 and to regulation 8B(4) inserted by S.I. 2001/3741, and the latter point to regulation 7B(4) inserted by S.I. 2001/3742.)

21 It is not clear to what "the investigation" in new regulation 9B(4)(b) and (e) and (6) refer, given that there is no reference in the preceding provisions to an investigation. (The same point applies to regulation 11(4) and (6) of S.I. 2001/3740, to regulation 8B(4) and (6) inserted by S.I. 2001/3741, and to regulation 7B(4) and (6) inserted by S.I. 2001/3742.)

22 New regulation 9B(6)(a) begins with the words "whether it was prejudicial to ¼", but it is not clear to what "it" in this context refers. (The same point applies to regulation 11(6)(a) of S.I. 2001/3740, and to regulation 7B(6)(a) inserted by S.I. 2001/3742.)

23 It is not clear what the words "(other than in cases specified in regulation 7C)" in new regulation 9E(1)(a) mean, as regulation 7C does not specify any cases and, in any event, confers a right of appeal on a practitioner whose application to be included in a list has been refused, so that no question of his removal from the list can arise.

24 There is no need for "calendar" to qualify "days" in new regulation 9E(3)(c) and new regulation 9G(1)(c). (The same point applies to regulations 10(9)(c) and 14(4)(c) of S.I. 2001/3740, to regulation 8E(3)(c) inserted by S.I. 2001/3741, and to regulation 7E(3)(c) inserted by S.I. 2001/3742.)

25 New regulation 9G(1)(e) requires a Health Authority, if it decides to review certain decisions, "after any hearing or on completion of the review", to notify the practitioner of its decision and the reasons for it. The words "after any hearing or" in paragraph (1)(e) seem inappropriate, since no decision can be reached before the review is complete. (The same point applies to regulation 7G(1)(e) inserted by S.I. 2001/3742.)

26 Paragraph (2) of new regulation 9G provides that, "if there are representations, the Authority must take them account before reaching its decision, and notifying the [practitioner] of its decisions and the reasons for it". The italicised words are redundant.

27 Given the requirement in new regulation 9G(1)(e), paragraphs (3) and (5) of that regulation are redundant. (The same point applies to regulation 7G(3) and (5) inserted by S.I. 2001/3742.)

28 In new regulation 9H(1) the words "The period for review shall be the different period specified below instead of that in section 49N(8) of the Act where the circumstances are that", are redundant given that each of sub-paragraphs (a) to (d) modifies the period mentioned in section 49N(8). (The same point applies to regulation 20 of S.I. 2001/3740, to regulation 8H inserted by S.I. 2001/3741, and to regulation 7H inserted by S.I. 2001/3742.)

29 It is not clear to whom "the suspended doctor" refers in new regulation 12A(4).

30 New paragraph 6A(1)(g) of Schedule 1, as inserted by regulation 8, requires a contractor to supply information as to whether he "is currently subject to any investigation into his professional conduct by any licensing, regulatory or other body anywhere in the world, where the outcome was adverse". As there can have been no outcome if the investigation is still in progress, this is self-evidently defectively drafted. (The same point applies to paragraphs 7(a)(ix) and 7(b)(vi) of the new Schedule 2 inserted by regulation 9.)

31 New paragraph 6A(3) provides that "The contractor shall consent" to a request being made by the Health Authority for information. It is doubtful whether this approach works, as there is no obvious mechanism to deal with a case where such consent is not in fact given. (This point also applies to new paragraph 6A(6), to regulations 4(6) and 9(3) of S.I. 2001/3740, and to paragraph 31H(2) and (4) of Schedule 1 and paragraph 36A(3) and (6) of Schedule 2 inserted by S.I. 2001/3741.) New paragraph 6A(3) also refers to "the contractor referred to in sub-paragraph (5)". It is not clear what this means. (Similar points apply to new paragraph 6A(6), and to paragraph 14 of the new Schedule 2.)

32 New paragraph 6A(4)(h) of Schedule 1 appears to add little if anything to paragraphs (f) and (g). (The same point applies to regulation 9(1) of S.I. 2001/3740, and to paragraph 31H(3) of Schedule 1 inserted by S.I. 2001/3741.)

33 New paragraph 6A(5)(b) contains the words "is convicted elsewhere of an offence, or is the subject of a lesser penalty which, if committed in England and Wales, would constitute a criminal offence". The meaning of this is obscure.

Loose drafting and grammatical errors

1 New regulation 7A(3)(b) refers to the length of time since "such offence or incident was committed and since any conviction or investigation". An incident cannot be "committed". It would have been clearer to say "since any such offence, incident, conviction or investigation". (The same point applies to new regulation 9B(2)(b), to regulation 6(4)(b) of S.I. 2001/3740, and to regulation 7B(2)(b) inserted by S.I. 2001/3742.)

2 New regulation 7A(3)(g) requires the Health Authority to take into consideration, in particular, whether the applicant has been refused admittance to or conditionally included in, removed, contingently removed or is currently suspended from any of a Health Authority's lists or from equivalent lists, "and if so, what the facts were in those cases and the reasons given by the Health Authority or equivalent body involved." The italicised phrase is inapt. Words such as "the facts relating to the matter which led to such action" would have been more appropriate. (The same point applies to new regulations 7A(3)(h) and 9B(4)(f) and (g), to regulations 6(4)(g) and (h) and 11(5)(g) and (h) of S.I. 2001/3740, to regulation 8B(2)(g), (4)(f), and (6)(f) inserted by S.I. 2001/3741, and to regulation 7B(2)(g) and (h), (4)(f) and (g), and (6)(g) and (h) inserted by S.I. 2001/3742.)

3 In new regulation 7A(3)(h) "conditionally included" should read "conditionally included in". (The same point applies to new regulation 9B(2)(g) and (h), (4)(f) and (g), and (6)(g) and (h), and in several places in the other three instruments.)

4 In new regulation 7(B)(1)(f) and (g) there is no object after "include", "contingently remove" and "remove".

5 In new regulation 8(2A) the word "him" is missing after "remove" in line 2.

6 In new regulation 8(2B) "the" in line 1 should read "an".

7 New regulation 9B(1) requires a Health Authority to "apply the criteria set out in paragraph (2)". Paragraph (2) sets out a list of matters to be taken into account, but does not set out any criteria to be applied in reaching a decision. (The same point applies to paragraphs (3) and (5) of new regulation 9B, to regulation 11 of S.I. 2001/3740, to regulation 8B inserted by S.I. 2001/3741, and to regulation 7B inserted by S.I. 2001/3742.)

8 New regulation 9D(1) requires the Health Authority to notify "the persons and bodies listed in paragraph (3)". Paragraph (3) contains no list, but mentions "any person or body that can establish that it is considering employing" the person in question. (The same point applies to regulation 8D(1) inserted by S.I. 2001/3741.)

9 The new paragraph 6A(1) of Schedule 1 (inserted by regulation 8) requires a contractor in specified cases to "give details, including approximate dates, of where any investigation or proceedings were or are to be brought". The italicised words cannot form part of the details of where the matters referred to have taken, or may take, place. This would have been better expressed in terms such as "details of any investigation or proceedings which were or are to be brought, including the nature of the investigation or proceedings, where and approximately when that investigation or those proceedings took place or are to take place, and any outcome". (The same point applies to sub-paragraphs (2), (4) and (5) of new paragraph 6A and paragraph 7(a) and (b) of the new Schedule 2, to regulations 4(4) and (5) and 9(1) and (2) of S.I. 2001/3740, and to paragraph 36A(1), (2), (3), (4) and (5) of Schedule 2 inserted by S.I. 2001/3742.)

10 Paragraph 7(a)(v) of the new Schedule 2 refers to "any proceedings which might lead to such a conviction, which has not yet been notified to the Health Authority". As it must be the proceedings rather than the conviction to which the absence of notification refers, "has" should read "have". (The same point applies to paragraph 7(b)(iii) of new Schedule 2.)

11 The title of the National Health Service Counter Fraud Service is misstated in paragraphs 7(a)(x) and (b)(vi) of new Schedule 2 (and also in new regulation 7A(1)(d)).


 
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