Health Act 1999 (c. 8)

(The document as of February, 2008)

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(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 or revocation 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 [1984 c. 48.] Health and Social Security Act 1984 and section 15(3) of the [1988 c. 49.] 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 57 of the [1999 c. 8.] Health Act 1999".

Fraud

58 Disqualification etc. of Part II practitioners

(1) For section 29 of the 1978 Act (disqualification of persons providing services) there is substituted--

" 29 The NHS tribunal

(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 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,

the Tribunal shall inquire into the case.

(3) If the Tribunal receive such representations 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) 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.

(5) Subsections (6) to (11) apply for the purposes of this group of sections.

(6) 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.

(7) 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.

(8) 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;

(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.

(9) "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.

(10) 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.

(11) 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.

(12) In this section and sections 29A to 29C--

(a) "this group of sections" means this and those sections and Schedule 8; and

(b) the NHS Tribunal is referred to as the Tribunal.

29A The NHS Tribunal: supplementary

(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(8) 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(7)(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.

29B Powers of NHS Tribunal

(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(8) as that list.

(3) If the Tribunal make a national disqualification they may also declare that the person is not fit to be engaged in any capacity in the provision of the services to which the lists in question relate (referred to in this group of sections as a declaration of unfitness).

(4) 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.

(5) A disqualification under this section shall have effect when the case is finally concluded.

(6) If a person is disqualified for 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.

29C Conditional disqualification etc

(1) The functions of making disqualifications under section 29B include making a conditional disqualification, that is, a disqualification which is to come into effect only if the Tribunal 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 by virtue of subsection (1) with a view to--

(a) removing any prejudice to the efficiency of the services in question; or

(b) preventing any acts or omissions within section 29(7)(a),

(as the case may be).

(3) Conditions so imposed shall have effect when proceedings in the case are finally concluded.

(4) Section 29B(4) applies to a conditional disqualification as it applies to a disqualification.

(5) The Tribunal may by directions--

(a) vary the terms of service of the person subject to the inquiry (including terms imposed by regulations under this Part);

(b) confer functions on any Health Board,

for the purpose of or in connection with the imposition of any conditions by virtue of this section.

(6) References in any enactment to a disqualification by the Tribunal do not include a conditional disqualification. "

(2) For section 30 of the 1978 Act (removal of disqualification) there is substituted--

" 30 Review etc. of disqualification

(1) The Tribunal may review any disqualification, conditional disqualification or declaration of unfitness--

(a) if the disqualified or conditionally 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;

and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate.

(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.

(4) 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.

(5) On a review under subsection (3) of a conditional disqualification, the Tribunal may remove it, vary the conditions or make it unconditional and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate.

(6) 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

they may also make a declaration of unfitness.

(7) 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;

if they are of the opinion that it would be unjust to do so.

(8) 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.

(9) The Tribunal may hold an inquiry for the purposes of any review under this section. "

59 Recovery of charges and payments

(1) After section 99 of the 1978 Act there is inserted--

" 99ZA Recovery of charges and payments

(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;

(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;

(d) optical appliances;

(e) any other appliances provided in pursuance of this Act.

(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 [1997 c. 46.] 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)".

Part III Miscellaneous and Supplementary

Miscellaneous

60 Regulation of health care and associated professions

(1) Her Majesty may by Order in Council make provision--

(a) modifying the regulation of any profession to which subsection (2) applies, so far as appears to Her to be necessary or expedient for the purpose of securing or improving the regulation of the profession or the services which the profession provides or to which it contributes,

(b) regulating any other profession which appears to Her to be concerned (wholly or partly) with the physical or mental health of individuals and to require regulation in pursuance of this section.

(2) The professions referred to in subsection (1)(a) are--

(a) the professions regulated by the [1954 c. 61.] Pharmacy Act 1954, the [1983 c. 54.] Medical Act 1983, the [1984 c. 24.] Dentists Act 1984, the [1989 c. 44.] Opticians Act 1989, the [1993 c. 21.] Osteopaths Act 1993 and the [1994 c. 17.] Chiropractors Act 1994,

(b) the professions regulated by the [1997 c. 24.] Nurses, Midwives and Health Visitors Act 1997,

(d) any other profession regulated by an Order in Council under this section.

(3) The Professions Supplementary to Medicine Act 1960 and the Nurses, Midwives and Health Visitors Act 1997 are to cease to have effect.

(4) Schedule 3 (which makes further provision about Orders under this section) is to have effect.

61 English and Scottish border provisions

(1) Her Majesty may by Order in Council provide for any functions to which subsection (2) applies which are specified in the Order, so far as exercisable in respect of the provision of services to persons in English border areas, to be exercisable (instead of any corresponding function to which subsection (4) applies) in respect of the provision of the services in question to persons in Scottish border areas who are specified in the Order.

(2) This subsection applies to any functions under the 1977 Act, or Part I of the [1997 c. 46.] National Health Service (Primary Care) Act 1997, which are exercisable by the Secretary of State or any Health Authority or Primary Care Trust.

(3) Her Majesty may by Order in Council provide for any functions to which subsection (4) applies which are specified in the Order, so far as exercisable in respect of the provision of services to persons in Scottish border areas, to be exercisable (instead of any corresponding function to which subsection (2) applies) in respect of the provision of the services in question to persons in English border areas who are specified in the Order.

(4) This subsection applies to any functions under the 1978 Act, or Part I of the National Health Service (Primary Care) Act 1997, which are exercisable by the Scottish Ministers or any Health Board or NHS trust established under the 1978 Act.

(5) In this section--

"English border area" means the area of any Health Authority adjacent to Scotland,
"Scottish border area" means the area of any Health Board adjacent to England.

Supplementary

62 Regulations and orders

(1) Any power to make regulations or an order under this Act is exercisable by statutory instrument.

(2) Directions under section 20 or 28 or Schedule 2, or by virtue of section 38(1)(b), are to be given by an instrument in writing.

(3) Any such directions may be varied or revoked by subsequent directions under, or by virtue of, the same provision.

(4) Subsections (4) and (5) of section 126 of the 1977 Act (supplementary provisions about subordinate legislation) apply in relation to any power conferred by this Act to make Orders in Council, orders or regulations, or to give directions mentioned in subsection (2), as they apply in relation to the powers which may be exercised as mentioned in subsection (4)(a) and (b) of that section.

(5) The provision which may be made by virtue of subsection (4) of that section in regulations under section 20 or 31 or an Order in Council under section 61 includes provision amending or repealing any enactment, instrument or document.

(6) Subject to the following subsections, a statutory instrument containing subordinate legislation under this Act is to be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) Subsection (6) does not apply to--

(a) an order under section 63 which contains only provision for or in connection with the transfer of any property, rights or liabilities, or

(b) an order under section 67.

(8) No order is to be made under section 37(10) unless a draft has been laid before, and approved by resolution of, each House of Parliament.

(9) No recommendation is to be made to Her Majesty to make an Order in Council under section 60 unless a draft has been laid before, and approved by resolution of, each House of Parliament.

(10) But if any provision made by an Order in Council under that section would, if it were included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, no recommendation is to be made to Her Majesty to make the Order unless a draft--

(a) has been laid before, and approved by resolution of, each House of Parliament, and

(b) has been laid before, and approved by resolution of, the Scottish Parliament.

(11) No recommendation is to be made to Her Majesty to make an Order in Council under section 61 unless a draft--

(a) has been laid before, and approved by resolution of, each House of Parliament, and

(b) has been laid before, and approved by resolution of, the Scottish Parliament.

63 Supplementary and consequential provision etc

(1) The Secretary of State may by order make--

(a) such supplementary, incidental or consequential provision, or

(b) such transitory, transitional or saving provision,

as he considers necessary or expedient for the purposes of, in consequence of or for giving full effect to any provision of this Act.

(2) The provision which may be made under subsection (1) includes provision amending or repealing any enactment, instrument or document.

64 Interpretation

In this Act--

"the 1977 Act" means the [1977 c. 49.] National Health Service Act 1977,
"the 1978 Act" means the [1978 c. 29.] National Health Service (Scotland) Act 1978,
"the 1990 Act" means the [1990 c. 19.] National Health Service and Community Care Act 1990,
"the Commission" means the Commission for Health Improvement,
"enactment" includes an enactment whenever passed or made,
"NHS trust" has the same meaning--
(a)
in Part I of this Act as in the 1977 Act,
(b)
in Part II of this Act as in the 1978 Act.

Final provisions

65 Amendments and repeals

(1) Schedule 4 (amendments of enactments) is to have effect.

(2) The repeals set out in Schedule 5 (which include the repeal of an enactment which is spent) are to have effect.

66 Devolution

(1) For the purposes of the [1998 c. 46.] Scotland Act 1998, any provision of this Act which extends to Scotland is to be taken to be a pre-commencement enactment within the meaning of that Act; but this subsection does not apply to section 22.

(2) The power of a Minister of the Crown under section 67 to appoint a day for any of the following provisions to come into force in relation to Wales--

(a) sections 1 to 8 and 10 to 18 and Schedule 1,

(b) sections 26 to 32,

(c) section 65(1) and Schedule 4, so far as concerns the following provisions of that Schedule: paragraphs 1 to 16, 23 to 26, 27(a), 28 to 35, 37, 38 (except sub-paragraph (2)(b) and (d)), 39, 40, 71, 72, 74, 75, 76(b), 77 to 80, 81 (except sub-paragraph (2)(b)), 83, 84, 85 (except sub-paragraph (2)(a)) and 87 to 90,

is exercisable instead by the National Assembly for Wales.

(3) In Schedule 5 to the [1998 c. 38.] Government of Wales Act 1998 (bodies and offices covered by section 74), after paragraph 12 there is inserted--

" 12A The Commission for Health Improvement. "

(4) The National Assembly for Wales (Transfer of Functions) Order 1999 is amended as follows; and those amendments are to have effect as if made by an Order in Council under section 22 of the [S.I. 1999/672.] Government of Wales Act 1998 (transfer of Ministerial functions).

(5) In Schedule 1--

(a) in the entry for the 1977 Act, after paragraph (c) there is inserted--

" (cc) section 43C;

(ccc) sections 46 to 49E " ,

(b) at the end of the entry for the 1990 Act, there is inserted--

" The references above to paragraph 1 of Schedule 3 are references to that paragraph before the amendments made by section 17 of the [1999 c. 8.] Health Act 1999.

The Treasury consent requirement under paragraph 8 of that Schedule (inserted by Schedule 4 to the Health Act 1999), so far as relating to the matters referred to in paragraph (b) of that paragraph, shall continue in effect. " ,

(a) Part I and Schedule 4, except sections 20(1), 22 and 33 to 38 and Schedule 2 (other than paragraph 2);

(b) section 63, so far as it relates to any of the provisions which, by virtue of section 66(2), may be brought into force by the Assembly " .

(6) In Schedule 2, after the entry for the [1998 c. 18.] Audit Commission Act 1998, there is inserted--

" Health Act 1999 (c. 8)

The functions of the Secretary of State under section 20(1) shall be exercisable only with the agreement of the Assembly.

The functions of the Secretary of State under paragraphs 4 to 7 of Schedule 2 shall be exercisable only after consultation with the Assembly. "

67 Commencement

(1) The preceding provisions of this Act (including the Schedules) are to come into force on such day as the Secretary of State may by order appoint.

(2) Different days may be appointed under this section for different purposes.

(3) Subsection (1) does not apply to the repeal of section 10 of the [1960 c. 66.] Professions Supplementary to Medicine Act 1960 (power to extend or restrict application of Act), which comes into force on 1st July 1999 or, if later, on the day on which this Act is passed.

(4) Subsection (1) does not apply to section 66, of which--

(a) subsections (1) and (3) to (6) come into force on the day on which this Act is passed,

(b) subsection (2) comes into force on 1st July 1999 or, if later, the day on which this Act is passed.

68 Extent

(1) Subject to the following provisions--

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