National Health Service Reform and Health Care Professions Act 2002 (c. 17)

(The document as of February, 2008)

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(b) empowering the Council to require persons to give evidence or produce documents to it,

(d) enabling the Council to administer oaths.

(4) No person shall be required by or by virtue of regulations under this section to give any evidence or produce any document or other material to the Council which he could not be compelled to give or produce in civil proceedings before the High Court or, in Scotland, the Court of Session.

29 Reference of disciplinary cases by Council to court

(1) This section applies to--

(a) a direction of the Statutory Committee of the Royal Pharmaceutical Society of Great Britain under section 8 of the Pharmacy Act 1954 (c. 61) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968 (c. 67) (power to disqualify and direct removal from register),

(b) a direction of the Statutory Committee of the Pharmaceutical Society of Northern Ireland under Article 20 of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968,

(c) a direction by the Professional Conduct Committee of the General Medical Council under section 36 of the Medical Act 1983 (c. 54) (professional misconduct and related offences),

(d) a direction by the Committee on Professional Performance of the General Medical Council under section 36A of that Act (professional performance),

(e) a determination by the Professional Conduct Committee of the General Dental Council under section 27 of the Dentists Act 1984 (c. 24) (erasure or suspension of registration for crime or misconduct),

(f) a disciplinary order made by the Disciplinary Committee of the General Optical Council under section 17 of the Opticians Act 1989 (c. 44) (powers of Disciplinary Committee),

(g) any step taken by the Professional Conduct Committee of the General Osteopathic Council under section 22 of the Osteopaths Act 1993 (c. 21) (which relates to action to be taken in cases of allegations referred to the Professional Conduct Committee),

(h) any step taken by the Professional Conduct Committee of the General Chiropractic Council under section 22 of the Chiropractors Act 1994 (c. 17) (which relates to corresponding matters),

(i) any corresponding measure taken in relation to a nurse, midwife or health visitor,

(j) any corresponding measure taken in relation to a member of a profession regulated by the Professions Supplementary to Medicine Act 1960 (c. 66) or, after the repeal of that Act by virtue of section 60(3) of the 1999 Act, by any such Order in Council under section 60 of the 1999 Act as is mentioned in section 25(3)(i).

(2) This section also applies to--

(a) a final decision of the relevant committee not to take any disciplinary measure under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies,

(b) any corresponding decision taken in relation to a nurse, midwife or health visitor, or to any such person as is mentioned in subsection (1)(j) and

(c) a decision of the relevant regulatory body, or one of its committees or officers, to restore a person to the register following his removal from it in accordance with any of the measures referred to in paragraphs (a) to (j) of subsection (1).

(3) The things to which this section applies are referred to below as "relevant decisions".

(4) If the Council considers that--

(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or

(b) a relevant decision falling within subsection (2) should not have been made,

and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court.

(5) In subsection (4), the "relevant court"--

(a) in the case of a person whose address in the register of practitioners in question is (or if he were registered would be) in Scotland, means the Court of Session,

(b) in the case of a person whose address in the register of practitioners in question is (or if he were registered would be) in Northern Ireland, means the High Court of Justice in Northern Ireland, and

(c) in the case of any other person (including one who is not registered and is not seeking registration or restoration to the register), means the High Court of Justice in England and Wales.

(6) The Council may not so refer a case after the end of the period of four weeks beginning with the last date on which the practitioner concerned has the right to appeal against the relevant decision.

(7) If the Council does so refer a case--

(a) the case is to be treated by the court to which it has been referred as an appeal by the Council against the relevant decision (even though the Council was not a party to the proceedings resulting in the relevant decision), and

(b) the body which made the relevant decision is to be a respondent.

(8) The court may--

(a) dismiss the appeal,

(b) allow the appeal and quash the relevant decision,

(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or

(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.

Appeals

30 Medical practitioners

(1) The Medical Act 1983 (c. 54) is amended as follows.

(2) In section 40 (appeals)--

(a) in subsection (1), paragraph (c) is omitted,

(b) after subsection (1), there is inserted--

" (1A) A decision of the General Council under section 39 above giving a direction for erasure is also an appealable decision for the purposes of this section. " ,

" (3) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 36(6), 36A(7), or 37(6) above, or section 41(7) or 45(7) below, appeal against the decision to the relevant court.

(3A) In subsection (3), "the relevant court"--

(a) in the case of a person whose address in the register is (or if he were registered would be) in Scotland, means the Court of Session,

(b) in the case of a person whose address in the register is (or if he were registered would be) in Northern Ireland, means the High Court of Justice in Northern Ireland, and

(c) in the case of any other person (including one appealing against a decision falling within subsection (1)(e)), means the High Court of Justice in England and Wales.

(3B) A person in respect of whom an appealable decision falling within subsection (1A) above has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 39(2), appeal against the decision to a county court or, in Scotland, the sheriff in whose sheriffdom the address in the register is situated. " ,

(d) subsections (4) to (6), (9) and (10) are omitted, and

(e) for subsections (7) and (8) there is substituted--

" (7) On an appeal under this section from the Professional Conduct Committee, the Committee on Professional Performance or the Health Committee, the court may--

(a) dismiss the appeal,

(b) allow the appeal and quash the direction or variation appealed against,

(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by the committee concerned, or

(d) remit the case to the committee concerned to dispose of the case in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.

(8) On an appeal under this section from the General Council, the court (or the sheriff) may--

(a) dismiss the appeal,

(b) allow the appeal and quash the direction appealed against, or

(c) remit the case to the General Council to dispose of the case in accordance with the directions of the court (or the sheriff),

and may make such order as to costs (or in Scotland, expenses) as it (or he) thinks fit. "

(3) In Schedule 4 (proceedings before Professional Conduct, Health and Preliminary Proceedings Committees)--

(a) in paragraph 3(b), the words "to Her Majesty in Council" are omitted and for "the Judicial Committee" there is substituted "the court (or the sheriff)",

(b) in paragraph 10(1)--

(i) for "section 37 of this Act and" there is substituted "section 37 of this Act,",

(ii) after "or 37 of this Act", there is inserted "and a direction for erasure given by the General Council under section 39 of this Act", and

(iii) in paragraph (a), for the words "mentioned in subsection (3) of that section" there is substituted "specified in that section",

(d) in paragraph 10(3)--

(i) "or (2)" is omitted,

(ii) "or that sub-paragraph as applied by sub-paragraph (2) above" is omitted,

(iii) for "mentioned in section 40(3)" there is substituted "specified in section 40", and

(iv) for "mentioned in the said section 40(3)" there is substituted "specified in section 40 of this Act".

31 Dentists

(1) The Dentists Act 1984 (c. 24) is amended as follows.

(2) In section 29 (appeals)--

(a) in subsection (1), for the words from "to Her" to the end there is substituted "against that determination or direction to the relevant court.",

(b) after subsection (1) there is inserted--

" (1A) In subsection (1), "the relevant court"--

(a) in the case of a person whose address in the register is (or if he were registered would be) in Scotland, means the Court of Session,

(b) in the case of a person whose address in the register is (or if he were registered would be) in Northern Ireland, means the High Court of Justice in Northern Ireland, and

(d) for subsection (3) there is substituted--

" (3) On an appeal under this section, the court may--

(a) dismiss the appeal,

(b) allow the appeal and quash the determination or direction appealed against,

(c) (in the case of an appeal against a determination under section 27 above or a direction under section 28 above) substitute for the determination or direction appealed against any other determination or direction which could have been made or given by the Professional Conduct Committee or (as the case may be) the Health Committee, or

(d) remit the case to the Professional Conduct Committee, the Health Committee or the Continuing Professional Development Committee to dispose of the case under section 27 or 28 above or Schedule 3A to this Act in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit. "

(3) In section 44 (withdrawal of privilege from body corporate)--

(a) in subsection (4)--

(i) after "days" there is inserted "from service", and

(ii) for the words from "in accordance" to "Majesty in Council" there is substituted "appeal to the relevant court", and

(b) after subsection (4) there is inserted--

" (4A) In subsection (4), "the relevant court"--

(a) where the registered office of the body corporate is in Northern Ireland, means the High Court of Justice in Northern Ireland,

(b) where the registered office of the body corporate is in Scotland, means the Court of Session,

(c) where the registered office of the body corporate is in any other place, means the High Court of Justice in England and Wales. "

(4) In section 51, the words from "(other" to "appeals)" are omitted.

(5) In section 34A (professional training and development requirements), in subsection (7)(b), for "to Her Majesty in Council" there is substituted "under section 29 above to the relevant court".

(6) Subsection (5) has effect--

(a) upon the coming into force of this section, if that happens after the coming into force of article 8 of the Dentists Act 1984 (Amendment) Order 2001 (S.I. 2001/3926) ("the Dentists Order") so far as that article effects the insertion into the Dentists Act 1984 (c. 24) of the new section 34A(7)(b),

(b) otherwise, immediately after the coming into force to that extent of that article.

(7) If this section comes into force before article 10(3) of the Dentists Order--

(a) paragraphs (b), (c) and (d) of article 10(3) of that Order are revoked upon the coming into force of this section, and

(b) until the coming into force of the remainder of article 10(3) of that Order, section 29 of the Dentists Act 1984 (c. 24) (as amended by this section) is to be read with the modifications set out in subsection (8).

(8) The modifications are that section 29 is to be read as if--

(a) in each of paragraphs (a) and (b) of subsection (1A), the words "(or if he were registered would be)" were omitted,

(b) in paragraph (c) of subsection (3), the words "(in the case of an appeal against a determination under section 27 above or a direction under section 28 above)" were omitted, and

(i) for the words ", the Health Committee or the Continuing Professional Development Committee" there were substituted "or the Health Committee", and

(ii) the words "or Schedule 3A to this Act" were omitted.

32 Opticians

(1) Section 23 of the Opticians Act 1989 (c. 44) (appeals in disciplinary and other cases) is amended as follows.

(2) For subsection (1) there is substituted--

" (1) An individual or body corporate who is notified under subsection (11) of section 17--

(a) that a disciplinary order has been made against him under that section; or

(b) that a direction has been given in respect of him under subsection (9) of that section,

may, before the end of the period of 28 days beginning with the date on which notification was served, appeal against that order or direction to the relevant court.

(1A) In subsection (1), "the relevant court"--

(a) in the case of an individual whose address in the register is in Scotland, or a body corporate whose registered office is in Scotland, means the Court of Session,

(b) in the case of an individual whose address in the register is in Northern Ireland, or a body corporate whose registered office is in Northern Ireland, means the High Court of Justice in Northern Ireland, and

(1B) An individual or body corporate who is notified under subsection (3) of section 19 above that a direction has been given in respect of him under that section may, before the end of the period of 28 days beginning with the date on which notification was served, appeal against that direction to a county court or, in Scotland, the sheriff in whose sheriffdom the address in the register or (as the case may be) the registered office is situated.

(1C) On an appeal under this section, the court (or the sheriff) may--

(a) dismiss the appeal,

(b) allow the appeal and quash the order or direction appealed against,

(c) substitute for the order or direction appealed against any other order or direction which could have been made by the Disciplinary Committee, or

(d) remit the case to the Disciplinary Committee to dispose of the case in accordance with the directions of the court (or the sheriff),

and may make such order as to costs (or, in Scotland, expenses) as it (or he) thinks fit. "

(3) In subsection (2), for "any such appeal", where it first appears, there is substituted "any appeal under this section".

33 Osteopaths

(1) The Osteopaths Act 1993 (c. 21) is amended as follows.

(2) In section 10 (fraud or error in relation to registration)--

(a) in subsection (7), for "Her Majesty in Council" there is substituted "a county court or, in the case of a person whose address in the register is in Scotland, the sheriff in whose sheriffdom the address is situated",

(b) for subsection (8) there is substituted--

" (8) Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notification of the order was served under subsection (6). " ,

(d) for subsection (11) there is substituted--

" (11) On an appeal under this section, the court (or the sheriff) may--

(a) dismiss the appeal,

(b) allow the appeal and quash the order appealed against, or

(c) remit the case to the General Council to dispose of the case in accordance with the directions of the court (or the sheriff),

and may make such order as to costs (or, in Scotland, expenses) as it (or he) thinks fit. "

(3) In section 22 (consideration of allegations by the Professional Conduct Committee), in each of subsections (6) and (8), for "recommendation under section 31(8)(c)" there is substituted "decision of a court on an appeal under section 31".

(4) In section 23 (consideration of allegations by the Health Committee), in each of subsections (4), (5) and (6), for "recommendation under section 31(8)(c)" there is substituted "decision of a court on an appeal under section 31".

(5) In section 29 (appeals against decisions of the Registrar), for subsections (4) to (6) there is substituted--

" (4) A person aggrieved by the decision of the General Council on an appeal under this section may appeal to a county court or, in the case of a person whose address in the register is (or if he were registered would be) in Scotland, the sheriff in whose sheriffdom the address is situated.

(4A) On an appeal under subsection (4) above, the court (or the sheriff) may--

(a) dismiss the appeal,

(b) allow the appeal and quash the decision appealed against,

(d) remit the case to the General Council to dispose of the case in accordance with the directions of the court (or the sheriff),

and may make such order as to costs (or, in Scotland, expenses) as it (or he) thinks fit. "

(6) In section 31 (appeals against decisions of the Professional Conduct Committee and appeal tribunals)--

(a) in subsection (1), for the words from "sent to him" to the end there is substituted "served on him, appeal against it to the relevant court.",

(b) after subsection (1) there is inserted--

" (1A) In subsection (1), "the relevant court"--

(a) in the case of a person whose address in the register is (or if he were registered would be) in Scotland, means the Court of Session,

(b) in the case of a person whose address in the register is (or if he were registered would be) in Northern Ireland, means the High Court of Justice in Northern Ireland, and

(d) for subsection (8) there is substituted--

" (8) On an appeal under this section, the court may--

(a) dismiss the appeal,

(b) allow the appeal and quash the decision appealed against,

(c) substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee or (as the case may be) Health Committee, or

(d) remit the case to the Committee or appeal tribunal concerned to dispose of the case in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit. "

(7) In section 35 (rules), subsection (3) is omitted.

34 Chiropractors

(1) The Chiropractors Act 1994 (c. 17) is amended as follows.

(2) In section 10 (fraud or error in relation to registration)--

(b) for subsection (8) there is substituted--

" (8) Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notification of the order was served under subsection (6). " ,

(d) for subsection (11) there is substituted--

" (11) On an appeal under this section, the court (or the sheriff) may--

(a) dismiss the appeal,

(b) allow the appeal and quash the order appealed against, or

(c) remit the case to the General Council to dispose of the case in accordance with the directions of the court (or the sheriff),

and may make such order as to costs (or, in Scotland, expenses) as it (or he) thinks fit. "

(3) In section 22 (consideration of allegations by the Professional Conduct Committee), in each of subsections (7) and (9), for "recommendation under section 31(8)(c)" there is substituted "decision of a court on an appeal under section 31".

(5) In section 29 (appeals against decisions of the Registrar), for subsections (4) to (6) there is substituted--

(4A) On an appeal under subsection (4) above, the court (or the sheriff) may--

(a) dismiss the appeal,

(b) allow the appeal and quash the decision appealed against,

(d) remit the case to the General Council to dispose of the case in accordance with the directions of the court (or the sheriff),

and may make such order as to costs (or, in Scotland, expenses) as it (or he) thinks fit. "

(6) In section 31 (appeals against decisions of the Professional Conduct Committee and appeal tribunals)--

(a) in subsection (1), for the words from "sent to him" to the end there is substituted "served on him, appeal against it to the relevant court.",

(b) after subsection (1) there is inserted--

" (1A) In subsection (1), "the relevant court"--

(a) in the case of a person whose address in the register is (or if he were registered would be) in Scotland, means the Court of Session,

(b) in the case of a person whose address in the register is (or if he were registered would be) in Northern Ireland, means the High Court of Justice in Northern Ireland, and

(d) for subsection (8) there is substituted--

" (8) On an appeal under this section, the court may--

(a) dismiss the appeal,

(b) allow the appeal and quash the decision appealed against,

(c) substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee or (as the case may be) Health Committee, or

(d) remit the case to the Committee or appeal tribunal concerned to dispose of the case in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit. "

(7) In section 35 (rules), subsection (3) is omitted.

The pharmacy profession

35 Regulation of the profession of pharmacy

In Schedule 3 to the 1999 Act (which makes provision in relation to orders under section 60 of that Act regulating health care and associated professions), in paragraph 2, for sub-paragraphs (2) and (3) there is substituted--

" (2) But (subject to paragraph 12) an order may not amend the Medicines Act 1968 except in connection with the regulation of the profession regulated by the Pharmacy Act 1954. "

Part 3 Miscellaneous

36 Amendments of health service legislation in connection with consolidation

(1) The Secretary of State may by order make such amendments of the legislation relating to the health service in England and Wales as in his opinion facilitate, or are otherwise desirable in connection with, the consolidation of the whole or greater part of that legislation.

(2) An order under this section shall not come into force unless--

(a) a single Act, or

(b) a group of two or more Acts,

is passed consolidating the whole or greater part of the legislation relating to the health service in England and Wales (with or without other legislation relating to any of the health services).

(3) If such an Act or group of Acts is passed, the order shall (by virtue of this subsection) come into force immediately before the Act or group of Acts comes into force.

(4) Once an order under this section has come into force, no further order may be made under this section.

(5) In this section--

"the health services" means any of the health services within the meaning of the 1977 Act, the National Health Service (Scotland) Act 1978 (c. 29) or the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)),
"the legislation relating to the health service in England and Wales" means the 1977 Act and any other Act relating to the health service (within the meaning of that Act), whenever passed.

37 Minor and consequential amendments and repeals

(1) The minor and consequential amendments specified in Schedule 8 are to have effect.

(2) The enactments specified in Schedule 9 are repealed to the extent specified.

38 Regulations and orders

(1) Any power under this Act to make any order or regulations is (except in the case of orders under section 22(5)) exercisable by statutory instrument or, in the case of an order made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 27, by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(2) A statutory instrument containing any order or regulations made by the Secretary of State under this Act, other than regulations under section 28 or an order under section 27, 36 or 42(3), shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) A statutory instrument containing regulations under section 28 or an order under section 36, or an order of the Secretary of State under section 27, shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) No order shall be made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 27 unless a draft of the order has been laid before, and approved by resolution of, the Northern Ireland Assembly.

(5) Any power under this Act to make any order or regulations may be exercised--

(a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case,

(b) so as to make, as respects the cases in relation to which it is exercised--

(i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise),

(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class of case for different purposes of this Act,

(iii) any such provision either unconditionally or subject to any specified condition.

(6) Where any such power is expressed to be exercisable for alternative purposes it may be exercised in relation to the same case for any or all of those purposes.

(7) Any such power includes power--

(a) to make such incidental, supplementary, consequential, saving or transitional provision (including provision amending, repealing or revoking enactments) as the authority making the order or regulations considers to be expedient, and

(b) to provide for a person to exercise a discretion in dealing with any matter.

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