Health Bill [H.L.] - continued        House of Lords
PART II, THE NATIONAL HEALTH SERVICE: SCOTLAND - continued

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Indemnity cover
Indemnity cover for Part II services.     49. - (1) After section 28B of the 1978 Act there is inserted-
 
 
"Indemnity cover.     28C. - (1) Regulations may make provision for the purpose of securing that, in prescribed circumstances, prescribed Part II practitioners hold approved indemnity cover.
 
    (2) The regulations may, in particular, make provision as to the consequences of a failure to hold approved indemnity cover, including provision-
 
 
    (a) for securing that a person is not be added to any list unless he holds approved indemnity cover;
 
    (b) for the removal from a list prepared by a Health Board of a Part II practitioner who does not within a prescribed period after the making of a request by the Health Board in the prescribed manner satisfy the Health Board that he holds approved indemnity cover.
      (3) For the purposes of this section-
 
 
    "approved body" means a person or persons approved in relation to indemnity cover of any description, after such consultation as may be prescribed, by the Secretary of State or by such other person as may be prescribed;
 
    "approved indemnity cover" means indemnity cover made-
 
      (a) on prescribed terms; and
 
      (b) with an approved body;
 
    "indemnity cover", in relation to a Part II practitioner (or person who proposes to provide Part II services), means a contract of insurance or other arrangement made for the purpose of indemnifying him and any person prescribed in relation to him to any prescribed extent against any liability which-
 
      (a) arises out of the provision of Part II services in accordance with arrangements made by him with a Health Board under this Part of this Act; and
 
      (b) is incurred by him or any such person in respect of the death or personal injury of a person;
 
    "list" has the same meaning as in section 29;
 
    "Part II practitioner" means a person whose name is on a list;
 
    "Part II services" means general medical services, general dental services, general ophthalmic services or pharmaceutical services;
 
    "personal injury" means any disease or impairment of a person's physical or mental condition and includes the prolongation of any disease or such impairment;
  and a person holds approved indemnity cover if he has entered into a contract or arrangement which constitutes approved indemnity cover.
 
      (4) The regulations may provide that a person of any description who has entered into a contract or arrangement which is-
 
 
    (a) in a form identified in accordance with the regulations in relation to persons of that description; and
 
    (b) made with a person or persons so identified,
  is to be treated as holding approved indemnity cover for the purposes of the regulations."
 
      (2) In section 19A of the 1978 Act (medical lists), at the beginning of subsection (3) there is inserted "Subject to any provision made under section 28C,".
 
      (3) In section 25 of that Act (arrangements for provision of general dental services), in subsection (2)(b), the word "and" before sub-paragraph (iii) is omitted and after that sub-paragraph there is inserted "; and
 
 
      (iv) any provision made under section 28C".
      (4) In section 26 of that Act (arrangements for provision of general ophthalmic services), in subsection (2)(b), after "practitioners" there is inserted "and any provision made under section 28C".
 
 
Fraud
Disqualification of Part II practitioners.     50. - (1) For section 29 of the 1978 Act (disqualification of persons providing services) there is substituted-
 
 
"The NHS tribunal.     29. - (1) The tribunal constituted in accordance with Schedule 8 shall continue under the name of "the NHS Tribunal" and that Schedule shall continue to have effect in relation to the Tribunal.
 
    (2) If the Tribunal receive representations from a Health Board-
 
 
    (a) that the continued inclusion of a person in any list of those undertaking to provide any services to which the list relates would be prejudicial to the efficiency of those services; or
 
    (b) that a person who is included, or who has applied to be included, in any such list has fraudulently acted in a way detrimental to any health service,
  the Tribunal shall inquire into the case.
 
      (3) If the Tribunal receive representations within subsection (2)(a) from any other person, they may inquire into the case.
 
      (4) Representations under this section shall be made-
 
 
    (a) in the prescribed manner; and
 
    (b) in a case in which representations within subsection (2)(b) above are made relating to a person who has applied to be included in a list, within the time allowed by regulations (subject to prescribed exceptions).
      (5) In this group of sections, a "list" means-
 
 
    (a) a list of medical practitioners undertaking to provide general medical services;
 
    (b) a list of medical practitioners undertaking to provide general ophthalmic services;
 
    (c) a list of dental practitioners undertaking to provide general dental services;
 
    (d) a list of ophthalmic opticians undertaking to provide general ophthalmic services; or
 
    (e) a list of persons undertaking to provide pharmaceutical services,
  prepared (in each case) under this Part.
 
      (6) In this section and sections 29A to 29C-
 
 
    (a) "this group of sections" means this and those sections; and
 
    (b) the NHS Tribunal is referred to as the Tribunal.
The NHS Tribunal: supplementary.     29A. - (1) For the purposes of this group of sections-
 
 
    (a) acting in a way which is detrimental to a health service includes acting in a way which is detrimental to any patient of that service;
 
    (b) "health service" means any of the health services continued under section 1(1) or the corresponding enactments extending to England, Wales and Northern Ireland and any prescribed service.
      (2) Regulations may prescribe any service for the purposes of subsection (1)(b) which appears to the Secretary of State to be a health or medical service paid for out of public funds.
 
      (3) Below in this group of sections-
 
 
    (a) cases in which representations within section 29(2)(a) are made are referred to as efficiency cases;
 
    (b) cases in which representations within section 29(2)(b) are made are referred to as fraud cases.
      (4) In a fraud case-
 
 
    (a) in spite of any provisions of this Part, the person subject to the inquiry has no right to be added to any list until proceedings in that case have been finally disposed of;
 
    (b) any inquiry is not affected by the person subject to the inquiry withdrawing any application to be included in any list or his removal from any list.
Powers of NHS Tribunal.     29B. - (1) If the Tribunal are of the opinion, on inquiring into an efficiency case, that the continued inclusion of the person subject to the inquiry in any list to which the case relates would be prejudicial to the efficiency of the services to which the list relates, the Tribunal shall disqualify him from inclusion in the list.
 
      (2) If the Tribunal are of the opinion, on inquiring into a fraud case, that the person subject to the inquiry has fraudulently acted in a way detrimental to any health service, the Tribunal shall disqualify him from inclusion in any list to which the case relates.
 
      (3) The Tribunal may also (in either case) disqualify the person from inclusion in any corresponding list kept by any other Health Board under this Part.
 
      (4) If the Tribunal disqualify a person under subsection (3) (but not conditionally), they may also declare that the person is not fit to be engaged in any capacity in the provision of the services in question (referred to in this group of sections as a declaration of unfitness).
 
      (5) The Tribunal shall not make any disqualification or declaration under this section if they are of the opinion that it would be unjust to do so.
 
      (6) A disqualification under this section which is not conditional shall have effect-
 
 
    (a) where no appeal is brought against the disqualification, from the end of the period for bringing an appeal; and
 
    (b) where an appeal is brought against the disqualification, from the time when the appeal process is exhausted.
      (7) If a person is disqualified (but not conditionally) from inclusion in any list prepared by a Health Board, the Board must not enter him in the list and (if he is already included in the list) must remove him from the list.
 
Conditional disqualification etc.     29C. - (1) The Tribunal may make a conditional disqualification under section 29B above, that is, a disqualification which is to come into effect only if they determine (on a review under section 30) that the person subject to the inquiry has failed to comply with any conditions imposed by them.
 
      (2) Conditions may be imposed under subsection (1) with a view to-
 
 
    (a) removing any prejudice to the efficiency of the services in question; or
 
    (b) preventing any fraudulent acts which are detrimental to the health service,
  (as the case may be).
 
      (3) The Tribunal may by directions in writing-
 
 
    (a) vary the terms of service of the person subject to the inquiry (including terms imposed by regulations under this Part); or
 
    (b) confer functions on any Health Board,
  for the purpose of or in connection with the imposition of any conditions under this section.
 
      (4) References below in this group of sections to a disqualification do not include a conditional disqualification".
 
      (2) For section 30 of the 1978 Act (removal of disqualification) there is substituted-
 
 
"Review etc. of disqualification.     30. - (1) The Tribunal may review any disqualification (whether or not conditional) or declaration of unfitness-
 
    (a) if the disqualified person requests a review; or
 
    (b) in any other circumstances in which they consider it appropriate.
      (2) On a review under subsection (1), the Tribunal may-
 
 
    (a) remove a disqualification or provide that a declaration of unfitness is to cease to have effect;
 
    (b) make a disqualification conditional;
 
    (c) in the case of a conditional disqualification, remove it, vary the conditions or make it unconditional;
 
    (d) in a fraud case where there is a disqualification (or conditional disqualification) under section 29B(2), make a disqualification (or conditional disqualification) under section 29B(3);
 
    (e) in a fraud case where there is a disqualification under section 29B(3), or the Tribunal on the review make such a disqualification or make a conditional disqualification under section 29B(3) unconditional, make a declaration of unfitness.
      (3) The Tribunal shall review any conditional disqualification if any Health Board requests a review.
 
      (4) On a review under subsection (3) of a conditional disqualification, the Tribunal may-
 
 
    (a) remove it, vary the conditions or make it unconditional;
 
    (b) in a fraud case where there is a conditional disqualification under section 29B(2), make a disqualification (or conditional disqualification) under section 29B(3);
 
    (c) in a fraud case where the Tribunal on the review make a conditional disqualification under section 29B(3) unconditional, make a declaration of unfitness.
      (5) The Tribunal may hold an inquiry for the purposes of any review under this section.".
 
Recovery of charges and payments.     51. - (1) After section 99 of the 1978 Act there is inserted-
 
 
"Recovery of charges and payments.     99ZA. - (1) Where goods or services to which this section applies are provided and either-
 
    (a) any charge payable by any person under this Act in respect of the provision of the goods or services is reduced, remitted or repaid, but that person is not entitled to the reduction, remission or repayment; or
 
    (b) any payment under this Act is made to, or for the benefit of, any person in respect of the cost of obtaining the goods or services but that person is not entitled to, or to the benefit of, the payment,
  the amount mentioned in subsection (2) is recoverable as a debt from the person in question by the responsible authority.
 
      (2) That amount-
 
 
    (a) in a case within subsection (1)(a), is the amount of the charge or (where it has been reduced) reduction;
 
    (b) in a case within subsection (1)(b), is the amount of the payment.
      (3) Where two or more persons are liable under section 99 or this section to pay an amount in respect of the same charge or payment, those persons shall be jointly and severally liable.
 
      (4) For the purposes of this section, the circumstances in which a person is to be treated as not entitled to a reduction, remission or repayment of a charge, or to (or to the benefit of) a payment, include in particular those in which it is received (wholly or partly)-
 
 
    (a) on the ground that he or another is a person of a particular description, where the person in question is not in fact of that description;
 
    (b) on the ground that he or another holds a particular certificate, when the person in question does not in fact hold such a certificate or does hold such a certificate but is not entitled to it;
 
    (c) on the ground that he or another has made a particular statement, when the person in question has not made such a statement or the statement made by him is false.
      (5) In this section and section 99ZB, "responsible authority" means-
 
 
    (a) in relation to the recovery of any charge under section 99 in respect of the provision of goods or services to which this section applies, the person by whom the charge is recoverable;
 
    (b) in relation to the recovery by virtue of this section of the whole or part of the amount of any such charge, the person by whom the charge would have been recoverable;
 
    (c) in a case within subsection (1)(b), the person who made the payment.
      (6) But the Secretary of State may by directions provide for-
 
 
    (a) the functions of any responsible authority of recovering any charges under this Act in respect of the provision of goods or services to which this section applies;
 
    (b) the functions of any responsible authority under this section and section 99ZB,
  to be exercised on behalf of the authority by another health service body.
 
      (7) This section applies to the following goods and services-
 
 
    (a) dental treatment and appliances provided in pursuance of this Act;
 
    (b) drugs and medicines provided in pursuance of this Act;
 
    (c) the testing of sight;
 
    (d) optical appliances;
 
    (e) any other appliances provided in pursuance of this Act.
  99ZB.- (1) Regulations may provide that, where a person fails to pay-
 
 
    (a) any amount recoverable from him under section 99 in respect of the provision of goods or services to which section 99ZA applies; or
 
    (b) any amount recoverable from him under section 99ZA,
  a notice (referred to in this section as a penalty notice) may be served on the person, by or on behalf of the responsible authority, requiring him to pay to the authority, within a prescribed period, that amount together with a charge (referred to in this section as a penalty charge) of an amount determined in accordance with the regulations.
 
      (2) The regulations may not provide for the amount of the penalty charge to exceed whichever is the smaller of-
 
 
    (a) £100;
 
    (b) the amount referred to in subsection (1)(a) or (b) multiplied by 5.
      (3) The Secretary of State may by order provide for subsection (2) to have effect as if, for the sum specified in paragraph (a) or the multiplier specified in paragraph (b) (including that sum or multiplier as substituted by a previous order), there were substituted a sum or (as the case may be) multiplier specified in the order.
 
      (4) Regulations may provide that, if a person fails to pay the amount he is required to pay under a penalty notice within the period in question, he must also pay to the responsible authority by way of penalty a further sum determined in accordance with the regulations.
 
      (5) The further sum must not exceed 50 per cent. of the amount of the penalty charge.
 
      (6) Any sum payable under the regulations (including the amount referred to in subsection (1)(a) or (b)) may be recovered by the responsible authority as a debt.
 
      (7) But a person is not liable by virtue of a penalty notice-
 
 
    (a) to pay at any time so much of any amount referred to in subsection (1)(a) or (b) for which he is jointly and severally liable with another as at that time has been paid, or ordered by a court to be paid, by that other; or
 
    (b) to a penalty charge, or a further sum by way of penalty, if he shows that he did not act wrongfully, or with any lack of care, in respect of the charge or payment in question.
      (8) Section 99ZA and this section apply to charges which may be made and recovered under section 20 of the National Health Service (Primary Care) Act 1997 as they apply to charges under this Act which may be recovered under section 99; and the reference to this Act in section 99ZA(7)(a) includes a reference to a pilot scheme (within the meaning of the 1997 Act).".
 
      (2) In section 105(3) of the 1978 Act (Parliamentary procedure for certain regulations) after "endowments)" there is inserted "or orders under section 99ZB(3)".
 
 
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