National Health Service (Wales) Act 2006 (c. 42)

(The document as of February, 2008)

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(b) accommodation at any health service hospital or group of hospitals, or a hospital in which patients are treated under arrangements made by virtue of section 10, or at the health service hospitals in a particular area or a hospital in which patients are so treated.

(3) References in subsection (2) to a health service hospital include references to such a hospital within the meaning of section 275 of the National Health Service Act 2006 (c. 41), but do not include references to a hospital vested in an NHS trust or an NHS foundation trust.

138 Expenses payable by employed patients

(1) The Welsh Ministers may require any person--

(a) who is a resident patient for whom the Welsh Ministers provide services under this Act, and

(b) who is absent during the day from the hospital where he is a patient for the purpose of engaging in remunerative employment,

to pay such part of the cost of his maintenance in the hospital and any incidental cost as may seem reasonable to the Welsh Ministers having regard to the amount of that person's remuneration.

(2) The Welsh Ministers may recover the amount required under subsection (1).

Recovery, etc

139 Recovery of charges

(1) All charges recoverable under this Act by--

(a) the Welsh Ministers,

(b) a local social services authority, or

may be recovered summarily as a civil debt (but this does not affect any other method of recovery).

(2) If any person, for the purpose of evading the payment of any charge under this Act, or of reducing the amount of any such charge--

(a) knowingly makes any false statement or false representation, or

(b) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

the charge or the balance of the charge, may be recovered from him by the person by whom the cost of the service in question was defrayed.

140 Recovery of charges and payments in relation to goods and services

(1) Where goods or services to which this section applies are provided and--

(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 summarily as a civil 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 139(1) or this section to pay an amount in respect of the same charge or payment, those persons are 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 of that description,

(b) on the ground that he or another holds a particular certificate, when the person in question does not 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 141, "responsible authority" means--

(a) in relation to the recovery of any charge under section 139(1) 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 Welsh Ministers 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 141,

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.

141 Penalties relating to charges

(1) Regulations may provide that, where a person fails to pay--

(a) any amount recoverable from him under section 139(1) in respect of the provision of goods or services to which section 140 applies, or

(b) any amount recoverable from him under section 140,

a notice (referred to in this section as a penalty notice) may be served on the person by the responsible authority.

(2) A penalty notice is a notice requiring the person on whom it is served to pay the amount to the authority within a prescribed period, together with a charge (referred to in this section as a penalty charge) of an amount determined in accordance with the regulations.

(3) 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.

(4) The Welsh Ministers may by order provide for subsection (3) 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 multiplier specified in the order.

(5) 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.

(6) The further sum must not exceed 50 per cent of the amount of the penalty charge.

(7) Any sum payable under the regulations (including the amount referred to in subsection (1)(a) or (b)) may be recovered by the responsible authority summarily as a civil debt.

(8) 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.

142 Offences relating to charges

(1) A person is guilty of an offence if he does any act mentioned in subsection (2) with a view to securing for himself or another--

(a) the evasion of the whole or part of any charge under this Act in respect of the provision of goods or services to which section 140 applies,

(b) the reduction, remission or repayment of any such charge, where he or the other is not entitled to the reduction, remission or repayment,

(c) a payment under this Act (whether to, or for the benefit of, himself or the other) in respect of the cost of obtaining such goods or services, where he or the other is not entitled to, or to the benefit of, the payment.

(2) The acts referred to in subsection (1) are--

(a) knowingly making, or causing or knowingly allowing another to make, a false statement or representation, or

(b) in the case of any document or information which he knows to be false in a material particular, producing or providing it or causing or knowingly allowing another to produce or provide it.

(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4) A person, although he is not a barrister or solicitor, may conduct any proceedings under this section before a magistrates' court if he is authorised to do so by the Welsh Ministers.

(5) Proceedings for an offence under this section may be begun within--

(a) the period of three months beginning with the date on which evidence, sufficient in the opinion of the Welsh Ministers to justify a prosecution for the offence, comes to their knowledge, or

(b) the period of 12 months beginning with the commission of the offence.

(6) For the purposes of subsection (5), a certificate purporting to be signed by or on behalf of the Welsh Ministers as to the date on which such evidence as is mentioned in paragraph (a) of that subsection came to their knowledge, is conclusive evidence of that date.

(7) Where a person is convicted of an offence under this section in respect of any charge or payment under this Act, he is not liable in respect of the charge or payment to pay any penalty charge or further sum by way of penalty which would otherwise be recoverable from him under section 141.

(8) Where a person pays any penalty charge, or further charge by way of penalty, recoverable under section 141 in respect of any charge or payment under this Act, he must not be convicted of an offence under this section in respect of the charge or payment.

(9) Subsection (4) of section 140 applies for the purposes of this section as it applies for the purposes of that.

Part 10 Protection of NHS from fraud and other unlawful activities

Preliminary

143 Compulsory disclosure of documents

(1) This Part confers power to require the production of documents in connection with the exercise of the Welsh Ministers' counter fraud functions in relation to the health service.

(2) The Welsh Ministers' "counter fraud functions" in relation to the health service means their power (by virtue of section 2(1)(b)) to take action for the purpose of preventing, detecting or investigating fraud, corruption or other unlawful activities carried out against or otherwise affecting--

(a) the health service, or

(b) the Welsh Ministers, in relation to their responsibilities for the health service.

(3) In this Part, the Welsh Ministers' counter fraud functions in relation to the health service are collectively referred to as functions to which this Part applies.

(4) "Investigating" means investigating in relation to civil or criminal proceedings.

144 Persons and bodies about which provision is made by this Part

(1) This section applies for the purposes of this Part.

(2) Subject to any provision made under subsection (6), "NHS body" has the meaning given by section 22(6).

(3) A "health service provider" means any person (other than an NHS body) providing--

(a) primary medical services, primary dental services or pharmaceutical services under this Act or the National Health Service Act 2006 (c. 41),

(b) primary ophthalmic services under that Act, or

(4) An "NHS contractor" means any person (other than an NHS body or a person within subsection (3)) providing services of any description under arrangements made with an NHS body.

(5) A "statutory health body" means any body (other than an NHS body, or a person within subsection (3) or (4)) established by or under an enactment and--

(a) providing services in connection with the provision of, or

(b) exercising functions in relation to,

the health service in either England or Wales or both.

(6) The Welsh Ministers may by order--

(a) make such amendments of any of subsections (2) to (5) as they consider appropriate,

(b) make such consequential amendments of this Part as they consider appropriate.

Disclosure notices

145 Notice requiring production of documents

(1) This section applies if it appears to the Welsh Ministers that there are reasonable grounds for suspecting--

(a) that any documents containing information relevant to the exercise of any of their functions to which this Part applies are in the possession or under the control of any NHS body, statutory health body, health service provider or NHS contractor ("the relevant organisation"), and

(b) that a person within subsection (3) is accountable for the documents.

(2) The Welsh Ministers may serve on that person a notice requiring him to produce the documents to an authorised officer.

(3) The persons within this subsection are--

(a) any member, officer or director of the relevant organisation,

(b) any other person who takes part in the management of the affairs of that organisation,

(d) (in the case of a health service provider or NHS contractor who is an individual) that individual.

(4) A notice under this section must specify or describe the documents to which it relates.

(5) Subject to subsections (6) and (7), the notice may require those documents to be produced--

(a) at or by such time as is specified in the notice, or at once, and

(b) at such place, and in such manner, as is so specified.

(6) When specifying a time at or by which the documents must be produced, the notice must not require them to be produced otherwise than at a reasonable hour.

(7) If the notice requires documents to be produced at once, it may only be served at a reasonable hour.

(8) An authorised officer may, by agreement with the person served with a notice within subsection (6) or (7), vary the notice so as to extend the time for compliance with it.

(9) Any notice under this section, and any variation of such a notice under subsection (8), must be in writing.

(10) An individual is "accountable" for any documents if he has either day-to-day, or an overall, responsibility for the custody or control of the documents.

146 Production of documents

(1) This section applies where a notice has been served under section 145.

(2) An authorised officer may--

(a) take away any documents produced in compliance with the notice,

(b) take copies of or extracts from any documents so produced,

(3) If--

(a) the officer takes away any such document, and

(b) the person producing it requests the officer to provide him with a copy of it, and

the officer must, as soon as is reasonably practicable, provide that person with a copy of the document (in such form as the officer considers appropriate).

(4) Documents produced in compliance with a notice under section 145 may be retained for so long as the Welsh Ministers consider that it is necessary to retain them (rather than copies of them) in connection with the exercise of any of their functions to which this Part applies.

(5) If the Welsh Ministers have reasonable grounds for believing--

(a) that any such documents may have to be produced for the purposes of any legal proceedings, and

(b) that they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.

(6) If a person who is required by a notice under section 145 to produce any documents does not produce the documents in compliance with the notice, an authorised officer may require that person to state, to the best of his knowledge and belief, where they are.

(7) A person is not bound to comply with any requirement imposed by a notice under section 145 or any requirement under subsection (6) unless evidence of authority is given--

(a) at the time when the notice is served, or

(b) at the time when the requirement is imposed under subsection (6).

(8) In addition, a person may not be required under section 145 or subsection (6) to produce any document or disclose any information which he would be entitled to refuse to produce or disclose in proceedings in the High Court on grounds of legal professional privilege.

147 Delegation of functions

(1) This section applies if the Welsh Ministers give a direction under section 24 directing a Special Health Authority to exercise so much of their functions under sections 145 and 146 as is specified in the directions ("the delegated functions").

(2) The Welsh Ministers may give directions providing for senior officers of the Special Health Authority to exercise the delegated functions on behalf of the Special Health Authority.

(3) "Senior officer" means an officer of or above a level specified in the directions.

(4) The Welsh Ministers may by regulations make such provision as they consider appropriate in connection with the exercise of the delegated functions.

(5) The regulations may, in particular, make provision--

(a) specifying conditions as to training that must be satisfied in relation to officers of the Special Health Authority involved in the exercise of the delegated functions,

(b) for requiring officers to obtain specific authorisation before the delegated functions are exercised in relation to personal records,

(d) otherwise prescribing the manner in which the delegated functions may be exercised.

148 Code of practice relating to delegated functions

(1) The Welsh Ministers may issue a code of practice relating to--

(a) the exercise of functions under section 145 or 146 by or on behalf of a Special Health Authority,

(b) procedures to be followed in relation to the disclosure (in accordance with sections 149 and 150) of information obtained by or on behalf of a Special Health Authority in the exercise of such functions.

(2) The Welsh Ministers must keep the code under review and may from time to time--

(a) revise the whole or any part of the code, and

(b) issue a revised code.

(3) Where the Welsh Ministers propose to issue a code of practice under this section they must--

(a) prepare a draft of the code, and

(b) consult such persons as they consider appropriate about the draft.

(4) Where the Welsh Ministers propose to issue a revised code under this section which in their opinion would result in a substantial change in the code, they must--

(a) prepare a draft of the revised code, and

(b) consult such persons as they consider appropriate about the change.

(5) Where, following consultation under subsection (3) or (4), the Welsh Ministers issue the code or revised code (whether in the form of the draft or with such modifications as they consider appropriate), it comes into force at the time when it is issued by the Welsh Ministers.

(6) A failure to observe any provision of a code or revised code issued under this section does not of itself make a person liable to any criminal or civil proceedings.

(7) A code or revised code issued under this section is admissible in evidence in any criminal or civil proceedings.

(8) Consultation undertaken by the Welsh Ministers before the commencement of this section is as effective for the purposes of this section as consultation undertaken after that time.

149 Disclosure of information

(1) This section applies to information which--

(a) is held by or on behalf of the Welsh Ministers, and

(b) was obtained by virtue of section 145 or 146.

(2) The information must not be disclosed except in accordance with subsection (3).

(3) A disclosure is made in accordance with this subsection if it is made--

(a) for the purposes of the exercise of any of the Welsh Ministers' functions in relation to the health service in Wales,

(b) for the purposes of the exercise of any of the Secretary of State's functions in relation to the health service in England,

(c) for the purposes of any civil proceedings brought in the exercise of any of the functions mentioned in paragraph (a) or (b),

(d) for the purposes of any criminal investigation or proceedings,

(e) for the purposes of any relevant disciplinary proceedings, or

(f) in accordance with an enactment or order of a court or tribunal.

(4) In subsection (3)--

"relevant disciplinary proceedings" means disciplinary proceedings conducted in relation to an individual by--
(a)
an NHS body, statutory health body or health service provider, or
(b)
any of the regulatory bodies mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17) (bodies within remit of Council for the Regulation of Health Care Professionals).

(5) Where information to which this section applies is disclosed to any person in accordance with subsection (3), the information must not be used or further disclosed except--

(a) for a purpose connected with the functions, investigation or proceedings for the purposes of which it was so disclosed, or

(b) in accordance with an enactment or order of a court or tribunal.

(6) Information to which this section applies may be disclosed in accordance with subsection (3) despite any obligation of confidence that would otherwise prohibit or restrict the disclosure.

(7) This section does not prohibit any disclosure or use of information relating to a particular person if it is made with the consent of that person.

150 Protection of personal information disclosed for purposes of proceedings

(1) Information obtained from personal records produced in compliance with a notice under section 145 is "protected information" for the purposes of this section if--

(a) a person ("the discloser"), in accordance with section 149(3), discloses the information for the purposes of any proceedings, and

(b) either--

(i) the identity of the individual in question can be ascertained from the information itself, or

(ii) the discloser has reasonable cause to believe that it will be possible for a person who obtains the information as a direct or indirect consequence of the disclosure to ascertain the individual's identity from that information taken with other information obtained by virtue of section 145 or 146 and disclosed by or on behalf of the Welsh Ministers.

(2) The discloser must take all reasonable steps to ensure that, once disclosed by him in accordance with section 149(3), the protected information is not further disclosed to any person who is not someone to whom it is necessary to disclose the information for any purpose connected with the proceedings mentioned in subsection (1)(a).

(3) In subsection (2) the reference to further disclosure of the information does not include any such disclosure--

(a) by way of evidence in any proceedings, or

(b) in accordance with an enactment or order of a court or tribunal.

(4) The Welsh Ministers must make provision, whether in a code of practice issued under section 148 or otherwise, for requiring any person disclosing protected information in accordance with section 149(3) to ensure, by the use of a distinguishing mark or in some other way, that the information is clearly identified as protected information for the purposes of this section.

(5) Information that appears to be protected information must not be disclosed by way of evidence in any proceedings unless--

(a) the whole of the proceedings are held in private, or

(b) in any other case, the information is disclosed in accordance with permission given by the court or tribunal on an application under subsection (6).

(6) If, on an application by a party to--

(a) proceedings before a court, or

(b) proceedings of any description before a tribunal that sits, or may sit, in public during the whole or part of proceedings of that description,

the court or tribunal is satisfied that it is in the interests of justice for any information that appears to be protected information to be disclosed by way of evidence in the proceedings, it may give permission for the information to be so disclosed, on such terms as it thinks fit.

(7) When determining such an application, the court or tribunal must consider whether, in the interests of protecting the identity of the individual to whom the information relates, the whole or part of the proceedings should be held in private.

(8) If the court or tribunal is satisfied that the whole or part of the proceedings should be held in private, it must give such directions, or take such other steps, as appear to it to be appropriate.

(9) In this section "proceedings" means--

(a) criminal or civil proceedings, or

(b) relevant disciplinary proceedings (as defined by section 149(4)).

151 Manner in which disclosure notice may be served

(1) This section provides for the manner in which a notice may be served under section 145.

(2) The notice may be served on a person by--

(a) delivering it to him,

(b) leaving it at his proper address,

(3) For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of a person is his usual or last-known address (whether residential or otherwise), except that--

(a) in the case of a notice to be served on the secretary, clerk or similar officer of a body corporate, it is the address of the registered office of that body or its principal office in the United Kingdom,

(b) in the case of a notice to be served on a partner or a person having the control or management of a partnership business, it is the address of the principal office of the partnership in the United Kingdom, and

(c) in the case of a notice to be served on an officer of an unincorporated association (other than a partnership), it is the address of the principal office of the association in the United Kingdom.

Offences under this Part

152 Offences in connection with production of documents

(1) A person commits an offence if, without reasonable excuse, he fails to comply with any requirement imposed on him under section 145 or 146.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction--

(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 3 on the standard scale,

or to both.

(3) If a person is convicted of an offence under subsection (1) in respect of a failure to produce a document and the failure continues after the date of his conviction, the person--

(a) commits a further offence, and

(b) is liable on summary conviction to a fine not exceeding 2% of level 3 on the standard scale for each day on which the failure so continues.

(4) A person commits an offence if, in purported compliance with any requirement imposed on him under section 146--

(a) he makes a statement which is false or misleading, and

(b) he either knows that it is false or misleading or is reckless as to whether it is false or misleading.

(5) "False or misleading" means false or misleading in a material particular.

(6) A person guilty of an offence under subsection (4) is liable--

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both.

153 Offences relating to disclosure or use of information

(1) A person commits an offence if he fails to comply with section 149(2) or (5) or section 150(2).

(2) A person guilty of an offence under subsection (1) is liable--

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