Office of Public Sector Information
315.Section 100 provides that the OHPA’s function of adjudication of fitness to practise cases is to be carried out by panels. The members are to be drawn from lists held by the OHPA and each panel must consist of at least 3 people – a chair, a lay member and a professionally qualified member. Other lay or professionally qualified members may be appointed to the panels provided they are on the OHPA’s lists (see note on section 101 below). The chair can be a person who is legally qualified, a lay member or a professionally qualified member (see note on section 101 below). Subsection (3) empowers the OHPA to make further provision about the selection of fitness to practise panels through its rules. Rules may provide, for example, that professionally qualified panel members are selected from the professional list with due regard to the profession of the practitioner whose fitness to practise is being considered.
316.Subsection (4) provides that rules made under subsection (3) may require the selection of a legally qualified chair in specified circumstances. The rules may also provide for pilot schemes under which legally qualified chairs are, or are not, selected for certain proceedings.
317.Section 101 requires the OHPA to keep three lists:
one of persons eligible to serve as chairs;
one of persons eligible to serve as lay members; and
one of persons eligible to serve as professionally qualified members.
318.Subsection (2) provides that the list of chairs is to consist of persons who are legally qualified and persons who are also included on the lists of lay and professionally qualified members.
319.Rules made by the OHPA under this section may set out further details of how the lists will be kept and the information relating to each individual appointed which will appear on the lists. Rules may also set out the requirements for appointment to any list. Rules made by the OHPA under this section must set out the qualifications a person must have in order to be considered ‘legally qualified’ and therefore eligible for appointment to the chairs list. They must also provide for the experience and training that any lay or professionally qualified member must have in order for them to be appointed to the chairs list.
320.This section provides that no member of the OHPA may be appointed to a list.
321.Section 102 provides that the OHPA may pay fees, allowances and expenses to people it has appointed to its lists. It also provides that allowances and expenses may be paid to those persons that the OHPA proposes to appoint to its lists, but only in connection with the provision of training for them. The OHPA must provide, or arrange for the provision of, training for those included on a list and may provide, or arrange for the provision of, training for prospective appointees to a list.
322.The OHPA must establish and maintain a system for the declaration and registration of the private interests of a person included on any of the lists and publish entries recorded in the register.
323.Under section 103 the OHPA must appoint or arrange for the appointment of legal assessors to give advice on points of law to the OHPA’s panels. To be eligible for appointment such assessors must meet the requirements set out in rules made by the OHPA. Rules made by the OHPA must set out the required qualifications, and may make further provision about the functions of legal assessors. The OHPA may pay such fees, allowances and expenses as it deems appropriate to these legal assessors. A legal assessor may be appointed either generally or for particular proceedings or a particular class of proceedings. Rules under this section may also provide that a panel is not to have a legal assessor, where the chair of the panel is legally qualified.
324.Section 104 provides that the OHPA may appoint persons as clinical advisers who will advise its fitness to practise panels on issues relating to health. The OHPA may also appoint other specialist advisers who will advise the panels on issues falling within their specialty on which the OHPA considers that specialist knowledge is required. To be eligible for appointment such advisers must meet the requirements set out in rules made by the OHPA. The rules may also make provision about their functions. The OHPA may pay such fees, allowances and expenses as it deems appropriate to these advisers. Advisers may be appointed either generally or for particular proceedings or a particular class of proceedings.
325.Section 105 requires the OHPA to make rules about the procedure to be followed in making referrals to it under the Medical Act 1983 or the Opticians Act 1989 and the procedure to be followed before its panels (including the rules of evidence). The rules will not apply to the conduct by the regulatory bodies of their investigations or the preparation of the case before it is referred to the OHPA.
326.The rules must include:
provision for a practitioner to be notified that proceedings are being brought against them;
provision for notice of decisions of a fitness to practise panel to be given to the parties to the proceedings (i.e. the practitioner and the regulator) and the registrar of the relevant regulatory body;
provision conferring the right on parties to the proceedings to put their case at a hearing;
provision conferring the right on parties to the proceedings to be represented at any hearing by a person meeting criteria specified in the rules; and
provision for hearings to be held in public except in circumstances that the rules state otherwise. For example, the rules could make provision for a hearing in private in some circumstances.
327.Section 106 makes provision for fitness to practise panels to require persons giving evidence during a hearing to give the evidence under oath and for witnesses to be summoned. Similar provision is made in subsection (1) for hearings in England and Wales or in Northern Ireland to that made in subsection (4) for hearings in Scotland.
328.Section 107 requires that the OHPA publish certain information about itself and the way it carries out its functions. This includes information about the decisions of its fitness to practise panels. The OHPA may withhold from publication confidential information about a person’s health, and other information specified in rules. It is not required, or authorised, to publish information if publication is prohibited by any enactment or would be a contempt of court.
329.Section 108 requires the OHPA to seek the views of the following on matters relevant to the exercise of its functions:
members of the public;
bodies which appear to the OHPA to represent the interests of patients;
the GMC and the GOC;
any other bodies that appear to the OHPA to represent the professions regulated by the Medical Act 1983 and Opticians Act 1989.
330.The section is not restrictive and the OHPA may choose to consult more widely than this. It is likely that the Office for National Statistics will classify the OHPA as an Executive Non-Departmental Public Body. As such it would be expected to follow existing best practice in consulting. This would include the practice to be followed in relation to the manner in which it makes public the responses and the decisions it reaches in light of them.
331.Section 109 provides that before making rules, the OHPA must consult:
the Council for Healthcare Regulatory Excellence;
the GMC, if the rules affect the profession regulated by the Medical Act 1983;
the GOC, if the rules affect the professions regulated by the Opticians Act 1989;
other bodies which appear to the OHPA to represent the professions regulated by the GMC or, as the case may be, the GOC, if the rules affect these regulated professions;
bodies that appear to the OHPA to represent the interests of patients;
any other persons the OHPA considers appropriate.
332.The rules come into force only if approved by the Privy Council by an Order of Council, subject to the negative resolution procedure (apart from any rules under section 100(4) containing provision for the piloting of legally qualified chairs, to which section 162(4) applies the affirmative procedure). The Privy Council may modify the rules before approving them but must first give the OHPA the opportunity to make observations on the proposed changes.
333.Section 110 introduces a fees charging regime from which the OHPA will secure the majority of its funding after the initial implementation period.
334.The section requires the Secretary of State to make regulations requiring each of the GMC and the GOC to pay to the OHPA a periodic fee in respect of the discharge of its functions (this is likely to be on an annual basis). Regulations made under this section will be subject to prior consultation with the two regulatory bodies and such other persons as the Secretary of State considers appropriate and will be subject to Treasury approval. The regulations will be subject to Parliamentary scrutiny under the negative resolution procedure.
335.The fee must be determined in accordance with the regulations. It is intended that the regulatory bodies will pay an amount linked to their forecasted use of the OHPA’s services. The OHPA will be required to notify the regulatory bodies of the proposed fee level and to consider any representations made by the regulators on this before formally setting the fee by making a determination.
336.Subsection (7) enables the regulations to: provide for when the fees are to be paid; enable a fee determination to be varied, replaced or revoked in year; and make provisions about unpaid fees.
337.Section 60 of the Health Act 1999 allows Her Majesty, by Order in Council, to modify the regulation of the existing regulated healthcare professions and to bring other healthcare professions into statutory regulation. An Order made under section 60 may repeal or revoke any enactment or instrument, amend it, or replace it (subject to the restrictions in paragraphs 7 and 8 of Schedule 3 to the Health Act 1999). The Government must consult on draft Orders prior to them being laid before Parliament. The Orders are subject to the affirmative procedure. Orders which make provision for professions whose regulation is not a “reserved matter” for the purposes of the Scotland Act 1998 (in effect, those made subject to statutory regulation since 1 July 1999) are subject to affirmative procedure in the Scottish Parliament (as well as at Westminster).
338.Section 111 brings into effect Schedule 8 which amends section 60 of, and Schedule 3 to, the Health Act 1999. The effect of the amendments is to extend the powers available under section 60.
339.Paragraph 1(2) brings the OHPA within the scope of section 60 of the Health Act 1999. This enables changes to be made to the constitution, functions, powers and duties of the OHPA by an Order in Council so that they can be updated as approaches to regulation change and evolve and so that additional professions can be brought within the remit of the OHPA.
340.Paragraph 1(3) removes the reference to the ‘Pharmacy Act 1954’ (which has been repealed by the Pharmacists and Pharmacy Technicians Order 2007) from section 60(2)(a). This is replaced by section 60(2)(aa) which refers to ‘professions regulated by the Pharmacists and Pharmacy Technicians Order 2007 and the Pharmacy (Northern Ireland) Order 1976’, the first now being the relevant legislation for the regulation of pharmacists and pharmacy technicians in Great Britain and the second being the relevant legislation in respect of the regulation of pharmacists in Northern Ireland. It also inserts a new section 60(2)(ca), referring to private hearing aid dispensers. The intention is to make an Order in Council under section 60 giving the Health Professions Council responsibility for the regulation of this profession.
341.Paragraph 1(4) inserts a new subsection (2A) into section 60. This enables an Order in Council under this section to make provision relating to, or connected with, the specific statutory functions of the RPSGB and the PSNI. These are:
the functions under the Medicines Act 1968 in relation to the registration and regulation of pharmacy premises, and the other inspection and enforcement functions which the RPSGB and the PSNI have under that Act;
the functions under the Poisons Act 1972 and the Poisons (Northern Ireland) Order 1976 in so far as they relate to persons admitted to practice, such as pharmacists, and persons carrying on a retail pharmacy business;
the grant of authorisations under section 28 of the Regulation of Investigatory Powers Act 2000 concerning directed surveillance.
342.The primary purpose of the inclusion of subsection (2A) is to ensure that these statutory functions, which are separate from but connected to the regulation of individual practitioners, are brought within the scope of section 60, so that changes can be made across all of the RPSGB’s and the PSNI’s regulatory functions where necessary. For example, this will facilitate the transfer of all of the RPSGB’s and the PSNI’s (subject to a decision by Northern Ireland Ministers to proceed in this way) regulatory functions under these Acts to the proposed General Pharmaceutical Council which the Government intends to create in the future by a section 60 Order. However, it is also envisaged that these powers will be used to modernise the requirements in relation to pharmacy premises in particular.
343.Paragraphs 2, 7(3) and (4) and 8(a) of Schedule 8 – An Order in Council under section 60 of the Health Act 1999 can amend or repeal (by virtue of paragraph 2(1) of Schedule 3 to that Act) any enactment. Paragraph 8(a) of Schedule 8 inserts a definition of “enactment” into Schedule 3. The definition includes not only Acts of the Westminster Parliament (and instruments made under them), but also Acts of the Scottish Parliament, Measures or Acts of the National Assembly for Wales and Northern Ireland legislation (and instruments made under them). Paragraph 2 amends section 62(10) of the Health Act 1999 to provide that where an Order in Council includes provision amending Scottish legislation on devolved matters but the provision is incidental to or consequential on provision about a reserved matter, the Order does not on that account require the approval of the Scottish Parliament. Paragraph 7(3) and (4) of Schedule 8 provide that, in those circumstances, Scottish Ministers are not required to consult on a draft of the Order in Council. Rather, the Secretary of State alone will consult on the draft Order (although he will have to consult the Scottish Ministers).
344.Paragraph 4 inserts a reference to “a Northern Ireland department” into paragraph 5 of Schedule 3 to the Health Act 1999. This allows an Order in Council under section 60 of the Health Act 1999 to confer functions on or modify the functions of a Northern Ireland department. This brings the position in relation to Northern Ireland departments into line with the ability to confer functions on or modify the functions of Ministers of the Crown, as well as the Scottish Ministers and the Welsh Ministers, by means of an Order under section 60.
345.Paragraph 5 makes amendments to paragraph 7 of Schedule 3, which specifies matters outside the scope of the Orders under section 60. Paragraph 5(2) replaces the existing sub-paragraph (1) of paragraph 7. New sub-paragraph (1) has the effect that those regulatory bodies to which section 60(2)(a) applies, the RPSGB, the PSNI, the Health Professions Council, the NMC, and any other regulatory body established by an Order under section 60 (such as the proposed new General Pharmaceutical Council), cannot be abolished by an Order under section 60.
346.New sub-paragraph (1A) of paragraph 7 of Schedule 3 qualifies new sub-paragraph (1) by providing that an Order in Council may establish a new regulatory body for the professions regulated by the Pharmacists and Pharmacy Technicians Order 2007 and the Pharmacy (Northern Ireland) Order 1976 and transfer to that new body regulatory functions currently exercised by the RPSGB and the PSNI. The scope of section 60 of the Health Act 1999 is confined to regulation. For that reason, the new paragraph 7(1A) of Schedule 3 to the Health Act 1999 will only enable functions relating to regulation to be transferred from the RPSGB and the PSNI to the proposed new General Pharmaceutical Council.
347.Under the current provisions in section 60 of, and Schedule 3 to, the Health Act 1999, an Order in Council cannot require a majority of the members of a regulatory body to be lay members. Paragraph 5(3) removes this restriction through the removal of paragraph 7(2) of Schedule 3 to the Health Act 1999.
348.Paragraph 5(4) removes a restriction that has prevented Orders under section 60 from being used to make provisions allowing functions conferred on the Privy Council in relation to some of the regulated professions to be exercised by another person. The professions affected are pharmacists, doctors, optometrists, dispensing opticians, osteopaths, chiropractors, dentists and the other professions regulated, or to be regulated, under the Dentists Act 1984. In practice, it is anticipated that once this restriction has been removed the extended section 60 power will generally be used to transfer functions from the Privy Council to the regulatory bodies for the affected professions rather than to third parties.
349.Paragraph 6 makes amendments to paragraph 8 of Schedule 3 to the Health Act 1999, which specifies other matters that are outside the scope of an Order under section 60. Paragraph 6(2) and (3) allow the fitness to practise functions of the regulatory bodies to be transferred to the OHPA by a section 60 Order. They also ensure that the regulatory functions currently exercised by the RPSGB, the PSNI and the Hearing Aid Council can be transferred to a new regulatory body, using an Order under section 60, which would otherwise be prohibited as regards certain protected functions.
350.Paragraph 7 makes amendments to paragraph 9 of Schedule 3 to the Health Act 1999, which specifies the preliminary procedures for making an Order under section 60. Paragraph 7(2) makes changes to clarify that where an Order under section 60 deals with more than one profession (for example, pharmacists and pharmacy technicians, or doctors and dentists), representations on the published draft Order should be invited from people considered appropriate to represent any profession covered by the Order. Representations should also be invited from people considered appropriate to represent the users of the services provided by any profession covered by the Order.
351.Paragraph 7(3) and (4): see the explanation in relation to paragraph 2 above.
352.Paragraph 8(a): see the explanation in relation to paragraph 2 above.
353.Paragraph 9 amends paragraph 11 of Schedule 3 to the Health Act 1999, by replacing references to the National Health Service Act 1977 with references to the NHS Act 2006 and the NHS (Wales) Act 2006 (which consolidated NHS legislation in England and Wales respectively).
354.Paragraph 10 repeals paragraph 12 of Schedule 3 to the Health Act 1999, which contains limitations on the extent to which changes can be made under section 60 in relation to the regulation of the pharmacy profession in Northern Ireland. This will allow for changes to the PSNI through an Order under section 60, specifically for the regulatory functions of the PSNI to be transferred to a new General Pharmaceutical Council (subject to a decision by Northern Ireland Ministers to proceed in this way).
355.Currently, the application of the standard of proof in fitness to practise proceedings by regulatory bodies is not consistent. At present, all except two of the health regulatory bodies (the GOC and the NMC) use the civil standard of proof rather than the criminal standard of proof in fitness to practise proceedings.
356.Section 112 inserts a new section 60A into the Health Act 1999. This new section imposes a requirement for all the regulatory bodies and the new OHPA to use the civil standard of proof in fitness to practise proceedings. A restriction is included in subsection (4), the effect of which is that an Order under section 60 of the Health Act 1999 may not amend this new section or make any provision which is inconsistent with the imposition of the civil standard of proof.
357.Section 113 changes the name of the CRHP to the Council for Healthcare Regulatory Excellence. As a consequence of the name change, a number of consequential amendments are required to the Health Care Professions Act 2002 and other enactments, which are contained in Schedule 10.
358.The general functions of the Council for Healthcare Regulatory Excellence are set out in section 25 of the Health Care Professions Act 2002. Section 113 inserts a new subsection (2A) into section 25, which provides that the main objective of the Council for Healthcare Regulatory Excellence, in exercising its functions, is to promote the health, safety and well-being of patients and other members of the public.
359.Section 114 makes provision regarding the constitution of the Council for Healthcare Regulatory Excellence. The present Council of nineteen members is reduced to nine members. It will consist of a chair appointed by the Privy Council, six non-executives appointed by the Secretary of State and the devolved administrations, and two executives appointed by the Council itself. Paragraphs 20 and 21 of Schedule 10 allow the Secretary of State and the Privy Council respectively, if they wish, to delegate the selection process to the Appointments Commission.
360.In addition, in subsection (3) of this section, amendments are made to the enabling powers to make regulations (contained in paragraph 6 of Schedule 7 to the Health Care Professions Act 2002) relating to conditions of appointment, tenure of office etc. of the chair, Council members and deputy chair as a consequence of the change in the constitution. Subsection (6) inserts a new sub-paragraph into paragraph 16 of Schedule 7 to require the Council for Healthcare Regulatory Excellence in its annual report to include a statement on how it and each health professions regulatory body has, in the Council's opinion, promoted the health, safety and well-being of patients and other members of the public.
361.Section 115 provides for a new subsection (4) to be substituted for the existing subsection (4) of section 26 of the Health Care Professions Act 2002. The new subsection clarifies that the Council for Healthcare Regulatory Excellence may investigate individual cases for the purpose of providing general reports on the performance of healthcare regulatory bodies and making general recommendations to those bodies affecting future cases.
362.Section 116 inserts a new section 26A into the Health Care Professions Act 2002 and amends section 26 of that Act. It enables the Secretary of State, the Welsh Ministers and the Scottish Ministers and DHSSPSNI to require the Council for Healthcare Regulatory Excellence to provide advice and investigate and report on matters relating to the regulation of the health care professions.
363.Section 117 inserts a new section 26B into the Health Care Professions Act 2002, which imposes a duty on the Council for Healthcare Regulatory Excellence to publish, or provide in a suitable manner, information about itself and the carrying out of its functions. It also imposes a duty on the Council for Healthcare Regulatory Excellence to seek the views of members of the public, and bodies which appear to it to represent the interests of patients, on issues relating to the Council’s functions.
364.Section 118 amends section 29 of the Health Care Professions Act 2002. Section 29 is extended to enable the Council for Healthcare Regulatory Excellence to refer to the High Court or, in Scotland, the Court of Session, cases relating to impairment of fitness to practise on grounds of ill health, in addition to cases relating to misconduct and professional competence.
365.The section makes some minor amendments which update references to the committees to which section 29 applies. It also makes amendments to remove the ability of the Council for Healthcare Regulatory Excellence to refer cases of the GMC and the GOC to the High Court or, in Scotland, the Court of Session, as those cases will fall within the remit of the new OHPA. The GMC and GOC are given powers to refer these cases in Schedule 7. Subsection (3) clarifies which court has jurisdiction to deal with referrals by the Council for Healthcare Regulatory Excellence by reference to the address to which notification of the relevant decision was sent. Subsection (4) amends section 29(6) (which currently provides a time limit of four weeks within which the Council may refer the case to the High Court or, in Scotland, the Court of Session). Section 29(6) is amended to provide that the Council may not refer a case to the High Court or, in Scotland, the Court of Session, after a period of forty days. The forty day period begins on the last day on which an appeal against the decision could be made.
366.Section 119 inserts a new Part 5A (responsible officers) into the Medical Act 1983 (which sets out the general provisions for the regulation of the medical profession). The new Part will contain six sections.
367.Subsection (1) allows the appropriate authority by regulations to designate certain organisations (“designated bodies”), which will be required to appoint or nominate persons who are to have specified responsibilities relating to the regulation of medical practitioners. These persons are to be known as “responsible officers”. The appropriate authority in relation to England, Wales and Scotland is the Secretary of State and in relation to Northern Ireland is DHSSPSNI.
368.Subsections (3) and (4) set out the types of organisations which may be required to nominate or appoint a responsible officer. These are organisations which are directly or indirectly involved in providing healthcare, or which employ or contract with doctors (including in an administrative capacity). This wide definition of designated bodies is intended to ensure that all doctors in the United Kingdom, whether employees or self-employed, are linked to an appropriate responsible officer. The intention is that all NHS hospital trusts and PCTs/Local Health Boards in England and Wales, Health Boards in Scotland, larger private sector healthcare organisations such as independent hospitals, and larger locum agencies supplying the services of doctors, should nominate or appoint responsible officers. Guidance will cover circumstances such as those of a doctor employed by two or more organisations, each with a responsible officer.
369.Subsection (5) allows regulations to include criteria for appointment of responsible officers, and a requirement for designated bodies to provide them with resources. It also allows regulations to permit two or more healthcare organisations to share the services of a single responsible officer – this could be helpful, for instance, for organisations only employing one or very few doctors. It also allows regulations to be made to authorise or require an organisation to have more than one responsible officer. Subsection (6) allows for regulations to require the GMC to be consulted before a responsible officer is nominated or appointed. Subsection (7) allows the regulations to specify cases where the Secretary of State is to nominate the responsible officer instead of the designated body itself.
370.Subsection (1) allows regulations made under the new section 45A to specify the responsibilities of the responsible officer. Such responsibilities can include the evaluation of the fitness to practise of medical practitioners having a prescribed connection with the designated body and a duty to co-operate with the GMC in connection with its responsibilities either for medical revalidation (Part 3A of the Medical Act 1983) or fitness to practise proceedings (Part 5 of the Medical Act 1983). It is intended that this co-operation will include making recommendations to the GMC (with whom the final decision rests) on relicensing of medical practitioners based on individuals’ records. Subsection (3) sets out the power to prescribe a connection between a medical practitioner and the designated body. The intention is that this power will be used to ensure that all medical practitioners in the UK come within the remit of a responsible officer. Subsection (4) enables the designated body to confer on the responsible officer any powers needed to undertake such responsibilities. Subsection (5) requires designated bodies to have regard to the responsible officer’s functions under the regulations if it gives them other functions to perform.
371.Subsection (1) of this new section allows the appropriate authority to create, in regulations made under section 45A, offences for non-compliance or other procedures for enforcement. Subsection (2) allows for regulations to require healthcare organisations or their responsible officers to take account of guidance issued by or on behalf of the appropriate authority. Subsection (3) enables the regulations to require bodies employing medical practitioners (but which are not designated bodies), or medical practitioners themselves, to provide funds and resources to a responsible officer (or their employer) having prescribed responsibilities in relation to such medical practitioners. Subsection (4) allows for the regulations to require specified persons to supply information or produce documents to a responsible officer in connection with the performance of that officer’s responsibilities.
372.This section applies new Part 5A of the Medical Act 1983 to the Crown and to people in the service of the Crown. Subsection (2) provides that the Crown will not be criminally liable for contravention of any provision of the Part but any such contravention may be declared unlawful by the relevant court.
373.Section 45E requires regulations to be made by statutory instrument, or by statutory rule in relation to Northern Ireland. The first regulations made by each of the appropriate authorities which confer responsibilities on responsible officers by virtue of section 45B are to be subject to the affirmative resolution procedure before Parliament or the Northern Ireland Assembly (as the case may be), but regulations are otherwise subject to the negative resolution procedure. Before making any regulations, the Secretary of State must consult the Scottish and Welsh Ministers if the regulations are to extend to Scotland or apply to Wales respectively.
374.Section 45F sets out the meaning of various terms used within this new Part 5A of the Medical Act 1983.
375.Section 120 allows the Secretary of State in relation to England, the Welsh Ministers in relation to Wales, and DHSSPSNI in relation to Northern Ireland, by regulations to confer further responsibilities on responsible officers nominated or appointed under Part 5A of the Medical Act 1983. Subsection (1) sets out that these additional responsibilities may relate to the initial employment of doctors, the monitoring of the performance or conduct of doctors, and ensuring appropriate action is taken when concerns are raised in relation to such performance or conduct (in circumstances which would not call into question the doctor’s fitness to practise under the Medical Act 1983). Subsection (5) applies sections 45A(5)(d), 45B(2) to (5) and 45C(1), (3) and (4) of the Medical Act 1983 (relating to the provision of resources, organisations having more than one responsible officer, the connection between a medical practitioner and a designated body, designated bodies conferring powers and additional functions on responsible officers, the creation of offences and procedures for enforcement and the provision of information) to regulations made under this section in the same way as those sections apply to regulations made under section 45A of that Act. Subsection (6) enables regulations to require designated bodies or their responsible officers to take account of guidance issued by or on behalf of the appropriate authority.
376.Subsection (1) allows the appropriate Minister to make regulations requiring specified bodies:
to share information relating to health care workers whose conduct or performance could be a threat to the health and safety of patients;
to respond to appropriate requests for information from other specified bodies about the conduct or performance of any health care worker;
to consider appropriate action and to take specified steps.
377.The bodies that may be specified for these purposes are those required to have responsible officers under the new Part 5A of the Medical Act 1983 (see the notes on section 119 above) and any other organisations specified by the regulations (it is intended that all organisations employing or contracting with health care or social care workers, public bodies exercising regulatory functions in relation to the work of such persons, social services authorities, other health related organisations, and the police will be specified for these purposes).
378.Subsection (2) allows the regulations to require specified bodies to take active steps to disclose information in specified circumstances whether or not the information has been requested. The types of circumstances which might be specified include situations where one body has concerns about a healthcare professional and believes that another body might have information that would help its investigation, or where an investigation uncovers information that shows that a worker may be a danger to public safety. Subsection (3) allows the appropriate Minister to create, in the regulations, offences for non-compliance, or other procedures for enforcement. Subsection (4) allows for the regulations to require specified bodies to take account of guidance given by or on behalf of the appropriate Minister. The intention is that guidance will cover issues such as the need to treat information received as confidential, the proper conduct of investigations, and factors to be taken into account when deciding whether or not to share information. Subsection (5) requires the appropriate Minister, when making regulations under this section, to have regard to the importance of avoiding unfair prejudice to health care workers against whom unsubstantiated allegations are made.
379.Subsection (6) defines a number of terms used in the section. The “appropriate Minister” is defined as the Secretary of State except that, in relation to co-operation by a Welsh health body or a Welsh social services body, it means the Welsh Ministers.
380.Section 122 applies sections 120 and 121 to the Crown and to people in the service of the Crown. Subsection (2) provides that the Crown will not be criminally liable for contravention of any provision of those sections or regulations made under them but any such contravention may be declared unlawful by the relevant court.
381.Section 123 provides for the dissolution of the Hearing Aid Council and the repeal of the Hearing Aid Council Act 1968 and the Hearing Aid Council (Extension) Act 1975. Subsection (3) prevents the dissolution of the Council from taking place before an Order in Council under section 60 of the Health Act 1999 has come into force. This will ensure that the Hearing Aid Council will not be abolished until provision has been made for the Health Professions Council to assume responsibility for the regulation of private hearing aid dispensers. Employers of private hearing aid dispensers will no longer be subject to statutory regulation. Subsection (5) allows the Secretary of State to make an order for the transfer of any property, rights and liabilities of the Hearing Aid Council to another regulatory body or the Secretary of State. Subsection (6) defines that other body as the body which is designated by the Order made under section 60 as being responsible for the regulation of private hearing aid dispensers.
382.Section 124 enables the Secretary of State (in relation to England) and the Welsh Ministers (in relation to Wales) to make regulations modifying the regulation of social care workers. Regulations may amend or repeal any enactment (subject to paragraphs 3 and 8 of Schedule 9). Subsection (3) defines “social care worker” by reference to the definition in section 55 of the Care Standards Act 2000.
383.Subsection (4) makes it clear that certain matters are covered by the references to the regulation of social care workers and are therefore within the scope of regulations under section 124. Paragraphs (a) and (b) cover social care workers who fall within the definition in section 55 of the Care Standards Act 2000 but who are not yet subject to registration, those who have applied for registration but are not yet registered, and those who have been, but are no longer, registered. Paragraph (c) makes it possible (if thought necessary or expedient in the future) to regulate activities carried on by persons who are not social care workers in connection with activities carried on by social care workers.
384.It is intended that regulations will be made to enable the legislative framework governing the social care workforce to be kept up to date, to take account of changing public expectations of the workforce and to take account of the workforce’s own views about the development of their regulation. New responsibilities can also be given to the Councils.
385.Schedule 9 supplements section 124.
386.Paragraph 2 of the Schedule gives examples of the matters which may be dealt with in regulations. Regulations may make changes to any aspect of the regulation of the social care workforce, subject to the limitations in paragraphs 3 and 8.
387.Paragraph 3 prevents the amendment by regulations of section 55 of the Care Standards Act 2000 which contains the definition of “social care worker” and is used for the purposes of section 124 and the Schedule. But it permits the amendment or repeal of any other provision of the Act or any other enactment, instrument or document.
388.Paragraph 4 enables regulations to make provision for the delegation of functions, including the power to make, confirm or approve subordinate legislation. This paragraph enables regulations to confer the power on the Councils to make rules, and to make provision for any such rules to be confirmed or approved. Currently, the Care Standards Act 2000 enables the Councils to make rules about issues detailed in Part 4 of that Act. Any such rules are subject to the approval of the appropriate Minister.
389.Paragraph 5(a) provides for regulations to make provision about the charging of fees. It is intended that where fees are charged, the level of those fees will not exceed the costs incurred in exercising the function to which the fees relate.
Health and Social Care Act 2008