Health Bill [H.L.] -
Amendments to be debated in the House of Lords
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Clause 39
 
  
BY THE BARONESS HAYMAN
 
35     Page 41, line 26, leave out from ("1978") to ("sections") in line 27 
  
Clause 45
 
  
BY THE LORD MACDONALD OF TRADESTON
 
36     Page 43, line 28, leave out ("(d)") and insert ("(e)") 
  
After Clause 49
 
  
BY THE LORD MACDONALD OF TRADESTON
 
37     Insert the following new Clause-- 
     (".--(1) For sections 28A and 28B of the 1978 Act (regulations as to remuneration) there is substituted--Remuneration for Part II services: Scotland.
 Remuneration for Part II services.     28A.--(1) The remuneration to be paid to persons who provide general medical services, general dental services, general ophthalmic services or pharmaceutical services under this Part of this Act shall be determined by determining authorities (and they may also determine the remuneration to be paid to persons providing those services in respect of the instruction of any person in matters relating to those services).
 
    (2)  For the purposes of this section and section 28B, determining authorities are--
    (a)  the Secretary of State; and
    (b)  so far as authorised by him to exercise the functions of determining authorities, any Health Board or other person appointed by him in an instrument (referred to in this section and section 28B as an instrument of appointment).
    (3)  An instrument of appointment--
    (a)  may contain requirements with which a determining authority appointed by that instrument must comply in making determinations; and
    (b)  may be contained in regulations.
    (4)  Subject to this section and section 28B, regulations may make provision about determining remuneration under subsection (1) and may in particular impose requirements with which determining authorities must comply in making, or in connection with, determinations (including requirements as to consultation and publication).
 
    (5)  Regulations may provide--
    (a)  that determinations may be made by reference to any of the following--
          (i)  rates or conditions of remuneration of any persons or any descriptions of persons which are fixed or determined, or to be fixed or determined, otherwise than by way of a determination under subsection (1);
          (ii)  scales, indices or other data of any description specified in the regulations;
    (b)  that any determination which in accordance with regulations made by virtue of paragraph (a)(ii) falls to be made by reference to a scale or an index or to any other data may be made not only by reference to that scale or index or those data in the form current at the time of the determination but also by reference to the scale, index or data in any subsequent form attributable to amendment or revision taking effect after that time or to any other cause.
    (6)  Regulations may--
    (a)  provide that determining authorities may make determinations which have effect in relation to remuneration in respect of a period beginning on or after a date specified in the determination, which may be the date of the determination or an earlier or later date, but may be an earlier date only if, taking the determination as a whole, it is not detrimental to the persons to whose remuneration it relates;
    (b)  provide that any such determination which does not specify such a date shall have effect in relation to remuneration in respect of a period beginning--
          (i)  if it is required to be published, on the date of publication;
          (ii)  if it is not so required, on the date on which it is made.
    (7)  A reference in this section or section 28B to a determination is a reference to a determination of remuneration under subsection (1) of this section.
 
 Part II remuneration: supplementary.     28B.--(1) Before a determination is made by the Secretary of State which relates to all persons who provide services of, or of a category falling within, one of the descriptions of services mentioned in section 28A(1), he shall consult at least one of the following bodies--
    (a)  a body one of whose functions is to provide advice in connection with the matters to be determined; or
    (b)  a body appearing to him to be representative of persons to whose remuneration the determination would relate.
    (2)  Determinations may make different provision for different cases including different provision for any particular case, class of case or area.
 
    (3)  Determinations may--
    (a)  be made in more than one stage;
    (b)  be made by more than one determining authority;
    (c)  be varied or revoked by subsequent determinations.
    (4)  A determination may be revised--
    (a)  to correct an error; or
    (b)  where it appears to the determining authority that it was made in ignorance of or under a mistake as to a relevant fact.
    (5)  Determinations may, in particular, provide that the whole or any part of the remuneration--
    (a)  is payable only if the determining authority is satisfied as to certain conditions; or
    (b)  is to be applied for certain purposes or is otherwise subject to certain conditions.
    (6)  Subject to sections 19(3) and 25(3), remuneration under section 28A may consist of payments by way of--
    (a)  salary;
    (b)  fees;
    (c)  allowances;
    (d)  reimbursement (in full or in part) of expenses incurred or expected to be incurred in connection with the provision of the services or instruction,
and may be determined from time to time.
 
    (7)  At the time a determination is made or varied, certain matters which require determining may be reserved to be decided at a later date.
 
    (8)  The matters which may be reserved include in particular--
    (a)  the amount of remuneration to be paid in particular cases;
    (b)  whether any remuneration is to be paid in particular cases.
    (9)  Any determination shall be made after taking into account all the matters which are considered to be relevant by the determining authority and such matters may include in particular--
    (a)  the amount or estimated amount of expenses (taking into account any discounts) incurred in the past or likely to be incurred in the future (whether or not by persons to whose remuneration the determination will relate) in connection with the provision of services of the description in section 28A(1) to which the determination will relate or of any category falling within that description;
    (b)  the amount or estimated amount of any remuneration paid or likely to be paid to persons providing such services;
    (c)  the amount or estimated amount of any other payments or repayments or other benefits received or likely to be received by any such persons;
    (d)  the extent to which it is desirable to encourage the provision, either generally or in particular places, of the description or category of services to which the determination will relate;
    (e)  the desirability of promoting services which are--
          (i)  economic and efficient; and
          (ii)  of an appropriate standard.
    (10)  If the determination is of remuneration for a category of services falling within one of the descriptions of services mentioned in section 28A(1), the reference in subsection (9)(a) to a category of services is a reference to the same category of services or to any other category of services falling within the same description."
 
     (2)  Sections 28A and 28B of the 1978 Act as substituted by this section have effect in relation to--
    (a)  the making of determinations on or after the commencement of this section; and
    (b)  the variation, revocation or revision on or after the commencement of this section of determinations whenever made,
and in this subsection "determinations" means determinations under Part II of the 1978 Act of the remuneration to be paid to persons who provide services mentioned in section 28A(1).
 
     (3)  Section 7(4) of the Health and Social Security Act 1984 and section 15(3) of the Health and Medicines Act 1988 (determinations of remuneration for services under Part II of the 1978 Act deemed to be valid) have effect in relation to Scotland as if--
    (a)  after "inserted by this section" in section 7(4)(b) of the 1984 Act; and
    (b)  after "section 7 of the Health and Social Security Act 1984" in section 15(3) of the 1988 Act,
there were inserted "and before the coming into force of section (Remuneration for Part II services: Scotland) of the Health Act 1999".
 
    (4)  The reference in section 28B(6) of the 1978 Act (as substituted by this section) to section 19(3) of that Act is to be read on and after the commencement of section 10 of the National Health Service Act 1966 as a reference to that section.")
1984 c.48.
1988 c.49.
  
Clause 50
 
  
BY THE LORD MACDONALD OF TRADESTON
 
38*     Page 49, line 1, leave out from ("receive") to end of line 9 and insert ("from a Health Board representations that--
    (a)  a person who is included in any list meets either of the conditions for disqualification, or
    (b)  a person who has applied to be included in any list meets the second condition for disqualification,")
 
39*     Page 49, line 11, leave out ("representations within subsection (2)(a)") and insert ("such representations") 
40*     Page 49, line 16, leave out from beginning to ("a") in line 21 and insert--
      ("(b)  where the representations are that the second condition for disqualification is met and regulations prescribe the time within which such representations are to be made, within that time.
        (4A)  Subsections (4B) to (5C) apply for the purposes of this group of sections.
        (4B)  The first condition for disqualification is that the continued inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide.
        (4C)  The second condition for disqualification is that the person concerned--
      (a)  has (whether on his own or together with another) by an act or omission caused, or risked causing, detriment to any health scheme by securing or trying to secure for himself or another any financial or other benefit; and
      (b)  knew that he or (as the case may be) the other was not entitled to the benefit.
        (5)")
 
41*     Page 49, line 32, at end insert--
        ("(5A)  Health scheme" means--
      (a)  any of the health services under section 1(1) or any corresponding enactment extending to England and Wales or Northern Ireland; and
      (b)  any prescribed scheme;
    and regulations may prescribe any scheme for the purposes of this subsection which appears to the Secretary of State to be a health or medical scheme paid for out of public funds.
        (5B)  Detriment to a health scheme includes detriment to any patient of, or person working in, that scheme or any person liable to pay charges for services provided under that scheme.
        (5C)  Cases in which representations are made that the first condition for disqualification is met are referred to below as efficiency cases; and cases in which representations are made that the second condition for disqualification is met are referred to below as fraud cases.")
 
42*     Page 49, line 35, after ("sections") insert ("and Schedule 8") 
43*     Page 49, line 37, leave out from beginning to end of line 28 on page 50 and insert-- 
 ("The NHS Tribunal: supplementary.     29A.--(1) Where an ophthalmic optician is a body corporate, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any director meets that condition (whether or not he first met that condition when he was a director).
 
    (2)  Where a body corporate carries on a retail pharmacy business, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any one of the body of persons controlling the body corporate meets that condition (whether or not he first met that condition when he was one of them).
 
    (3)  A person who is included in any list ("the practitioner") is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if--
    (a)  another person, because of an act or omission of his occurring in the course of providing any services mentioned in section 29(5) on the practitioner's behalf, meets that condition; and
    (b)  the practitioner failed to take all such steps as were reasonable to prevent acts or omissions within section 29(4C)(a) occurring in the course of the provision of those services on his behalf.
    (4)  The Tribunal is not required to inquire into a fraud case if they have previously inquired into representations in respect of the person concerned and the same acts or omissions.
 
    (5)  In a fraud case, regulations may make provision (including provision modifying the effect of this Part) for the purpose of securing that the person subject to the inquiry is not added to any list until proceedings in that case are finally concluded.
 
    (6)  For the purposes of this group of sections, in a fraud or efficiency case proceedings are finally concluded--
    (a)  if the Tribunal determine not to disqualify or conditionally disqualify him when they make that determination;
    (b)  if they determine to disqualify or conditionally disqualify him and no appeal is brought against the determination, at the end of the period for bringing an appeal;
    (c)  if they determine to disqualify or conditionally disqualify him and an appeal is brought against the determination, when the appeal process is exhausted.
    (7)  An inquiry under section 29 is not affected by the person subject to the inquiry withdrawing from, withdrawing any application to be included in or being removed from the list to which the case relates.
 
 Powers of NHS Tribunal.     29B.--(1) Subsection (2) applies where the Tribunal are of the opinion--
    (a)  on inquiring into an efficiency case, that the person meets the first condition for disqualification;
    (b)  on inquiring into a fraud case, that the person meets the second condition for disqualification.
    (2)  The Tribunal--
    (a)  shall make a local disqualification, that is disqualify him for inclusion in the list to which the case relates; and
    (b)  may also make a national disqualification, that is disqualify him for inclusion in all lists within the same paragraph of section 29(5) as that list.")
 
44*     Page 50, line 29, leave out from ("Tribunal") to ("they") in line 30 and insert ("make a national disqualification") 
45*     Page 50, line 32, leave out ("in question") and insert ("to which the lists in question relate") 
46*     Page 50, line 37, leave out from ("section") to end of line 44 and insert ("shall have effect when the case is finally concluded.") 
47*     Page 50, line 45, leave out from ("disqualified") to end of line and insert ("for") 
48*     Page 51, line 1, leave out from ("The") to ("that") in line 2 and insert ("functions of making disqualifications under section 29B include making a conditional disqualification,") 
49*     Page 51, line 3, leave out ("they") and insert ("the Tribunal") 
50*     Page 51, line 7, leave out ("under") and insert ("by virtue of") 
51*     Page 51, line 11, leave out from ("any") to end of line 12 and insert ("acts or omissions within section 29(4C)(a),") 
52*     Page 51, line 13, at end insert--
        ("(2A)  Conditions so imposed shall have effect when proceedings in the case are finally concluded.
        (2B)  Section 29B(5) applies to a conditional disqualification as it applies to a disqualification.")
 
53*     Page 51, line 14, leave out ("in writing") 
54*     Page 51, line 17, leave out ("or") 
55*     Page 51, line 20, leave out ("under") and insert ("by virtue of") 
56*     Page 51, line 21, leave out from ("References") to ("do") in line 22 and insert ("in any enactment to a disqualification by the Tribunal") 
57*     Page 51, line 27, leave out ("(whether or not conditional)") and insert (", conditional disqualification") 
58*     Page 51, line 28, after ("disqualified") insert ("or conditionally disqualified") 
59*     Page 51, leave out lines 37 to 45 and insert--
 
("and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate")
 
60*     Page 51, leave out lines 46 and 47 and insert--
        ("(3)  If any Health Board request a review of a conditional disqualification on the ground that--
      (a)  there has been a change in the circumstances by reference to which the conditions were imposed;
      (b)  the person concerned has failed to comply with the conditions; or
      (c)  in a fraud case, the person concerned has since the Tribunal imposed the conditions (or made the disqualification conditional) again satisfied the second condition for disqualification,
    the Tribunal shall review the conditional disqualification.
        (3A)  In the case of a person who is providing services in England and Wales or Northern Ireland, the reference in subsection (3) to a Health Board includes any corresponding authority under the provisions in force in England and Wales or Northern Ireland corresponding to this Part.")
 
61*     Page 52, leave out lines 5 to 12 and insert--
    ("and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate.
        (  ) If, on a review under this section of a fraud case--
      (a)  there is a national disqualification which the Tribunal do not remove or make conditional;
      (b)  there is a national disqualification which is conditional and which the Tribunal make unconditional; or
      (c)  the Tribunal make a national disqualification,
    they may also make a declaration of unfitness.
        (  )The Tribunal shall not under this section--
      (a)  in the case of a conditional disqualification, make it unconditional or vary the conditions; or
      (b)  make any further disqualification or conditional disqualification;
      (c)  make a declaration of unfitness,
    if they are of the opinion that it would be unjust to do so.
        (  ) A determination by the Tribunal under this section shall have effect--
      (a)  if no appeal is brought against it, at the end of the period for bringing an appeal;
      (b)  if an appeal is brought against it, when the appeal process is exhausted.")
 
 
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