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Health and Personal Social Services (Northern Ireland) Order 1972

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[F1SCHEDULE 11N.I.DISQUALIFICATION OF PERSONS PROVIDING PART VI SERVICES

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PART IN.I.THE TRIBUNAL

The Tribunal: general provisionsN.I.

1.(1) There shall continue to be a tribunal ( “the Tribunal”) constituted in accordance with Part II for the purposes set out in this Part.N.I.

[F2(2) If the Tribunal receives from a Health and Social Services Board representations that a person—

(a)who has applied to be included; or

(b)who is included,

in any list meets any of the conditions for disqualification, the Tribunal shall inquire into the case.]

(3) If the Tribunal receives such representations from any other person, it may inquire into the case.

(4) Representations under this paragraph shall be made—

(a)in the prescribed manner; and

(b)where F3. . . regulations prescribe the time within which such representations are to be made, within that time.

(5) Sub-paragraphs (6) to (11) apply for the purposes of this Schedule.

(6) The first condition for disqualification is that the [F4inclusion or continued] inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the [F5 list—

(a)in relation to a list referred to in paragraph (8)(a), (cc) or (e), perform;

(b)in relation to a list referred to in paragraph (8)(c) or (d), undertake to provide or are approved to assist in providing;]

(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.

[F6(7A) The third condition for disqualification is that the person concerned is unsuitable (by virtue of professional or personal conduct) to be included, or to continue to be included in the list.]

(8) A “list” means—

[F7(a)][F7a list of health care professionals of a prescribed description performing primary medical services;]

(b)F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F9(c)a list of health care professionals of a prescribed description and bodies corporate performing primary dental services;

(d)a list of medical practitioners and ophthalmic opticians undertaking to provide, and of persons who are approved to assist in providing, general ophthalmic services; or

(e)a list of registered pharmacists undertaking to provide pharmaceutical services,]

prepared (in each case) under Part VI of this Order.

[F7(8A) In sub-paragraph (8)(a), “health care professional” has the same meaning as in Article 15C.]

(9) “Health scheme” means—

(a)any of the health services under Article 4(a) or any corresponding statutory provision extending to Scotland or England and Wales; and

(b)any prescribed scheme,

and regulations may prescribe any scheme for the purposes of this sub-paragraph which appears to the Department 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 as efficiency cases; F10. . . cases in which representations are made that the second condition for disqualification is met are referred to as fraud cases [F11; and cases in which representations are made that the third condition for disqualification is met are referred to below as unsuitability cases].

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The Tribunal: supplementaryN.I.

2.(1) Where an ophthalmic optician is a body corporate, the body corporate is to be treated for the purposes of this Schedule as meeting the second condition for disqualification [F12or, as the case may be, the third condition for disqualification] if any director meets that condition (whether or not he first met that condition when he was a director).N.I.

[F13(1A) A body corporate entitled, by virtue of section 43 of the Dentists Act 1984 (c. 24), to carry on the business of dentistry is to be treated for the purposes of this Schedule as meeting the second condition for disqualification or, as the case may be, the third 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 Schedule 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 Schedule 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 [F14, assisting in providing, or as the case may be performing,] any services mentioned in paragraph 1(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 paragraph 1(7)(a) occurring in the course of the provision [F15, assistance in the provision or performance,] of those services on his behalf.

(4) The Tribunal is not required to inquire into a fraud case if it has previously inquired into representations in respect of the person concerned and the same acts or omissions.

(5) In [F16an unsuitability case, a fraud case or an inefficiency case], regulations may make provision (including provision modifying the effect of Part VI of this Order and this Schedule) 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 Schedule, in [F17an unsuitability,] a fraud or efficiency case proceedings are finally concluded—

(a)if the Tribunal determines not to disqualify, or conditionally disqualify, him, when it makes that determination;

(b)if it determines 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 it determines to disqualify, or conditionally disqualify, him and an appeal is brought against the determination, when the appeal process is exhausted.

(7) An inquiry under paragraph 1 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.

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Powers of the TribunalN.I.

3.(1) Sub-paragraph (2) applies where the Tribunal is of the opinion—N.I.

(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.

[F18(c)on inquiring into an unsuitability case, that the person meets the third condition for disqualification.]

[F19(2) The Tribunal shall disqualify him for inclusion in—

(a)the list to which the case relates;

(b)all lists within the same paragraph of paragraph 1(8) as that list; and

(c)where the list to which the case relates is a list referred to in—

(i)paragraph 1(8)(c), all lists within paragraph (cc) of paragraph 1(8);

(ii)that paragraph (cc), all lists within that paragraph (c).]

(3) If the Tribunal makes a general disqualification it may also declare that the person is not fit to be engaged in any capacity in the provision [F20, or as the case may be performance,] of the services to which the lists in question relate (referred to in this Schedule as a declaration of unfitness).

(4) The Tribunal shall not make [F21a] disqualification or declaration under this paragraph if it is of the opinion that it would be unjust to do so.

(5) A disqualification under this paragraph shall have effect when proceedings in the case are finally concluded.

(6) If a person is disqualified for inclusion in any list prepared by a Health and Social Services Board, the Board shall not enter him in the list and (if he is already included in the list) shall remove him from the list.

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Conditional disqualificationN.I.

4.(1) The functions of making disqualifications under paragraph 3 include making a conditional disqualification, that is, a disqualification which is to come into effect only if the Tribunal determines (on a review under paragraph 5) that the person subject to the inquiry has failed to comply with any conditions imposed by the Tribunal.N.I.

(2) Conditions may be imposed by virtue of sub-paragraph (1) with a view to—

(a)removing any prejudice to the efficiency of the services in question; F22. . .

(b)preventing any acts or omissions within paragraph 1(7)(a),

[F23(c)ensuring that the person

(i)performs, undertakes to provide or assists in providing only services specified (or of a description specified) in the condition;

(ii)undertakes an activity (or course of activity) of a personal or professional nature, or refrains from conduct of a personal or professional nature, so specified (or of a description so specified).]

(as the case may be).

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

(4) Paragraph 3(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 Part VI of this Order);

[F24(aa)vary any requirements to which the person subject to the inquiry is subject under or by virtue of Article 57G, 61F, 62A or 63AA;]

(b)confer functions on any Health and Social Services Board,

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

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

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Review etc. of disqualificationN.I.

5.(1) The Tribunal may review any disqualification, conditional disqualification or declaration of unfitness—N.I.

(a)if the disqualified or conditionally disqualified person requests a review; or

(b)in any other circumstances in which it considers it appropriate.

(2) On a review under sub-paragraph (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;

(c)in the case of a conditional disqualification, 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 it considers appropriate.

(3) If any Health and Social Services Board requests 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 [F25, or as the case may be performing,] services in Scotland or England and Wales, the reference in sub-paragraph (3) to a Health and Social Services Board includes [F26a reference to any authority which] under the provisions in force in Scotland or England and Wales corresponding to Part VI of this Order [F27would be entitled to request a review corresponding to that mentioned in that sub-paragraph].

(5) On a review under sub-paragraph (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 it considers appropriate.

(6) If, on a review under this paragraph of a fraud case—

(a)there is a general disqualification which the Tribunal does not remove or make conditional;

(b)there is a general disqualification which is conditional and which the Tribunal makes unconditional; or

(c)the Tribunal makes a general disqualification,

it may also make a declaration of unfitness.

(7) The Tribunal shall not under this paragraph—

(a)in the case of a conditional disqualification, make it unconditional or vary the conditions;

(b)make any further disqualification or conditional disqualification; or

(c)make a declaration of unfitness,

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

(8) A determination of the Tribunal under this paragraph 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 paragraph.

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AppealsN.I.

6.  Any person aggrieved by any determination of the Tribunal under this Part may appeal to the Court of Appeal in accordance with rules of court; and the decision given on any such appeal shall be final and conclusive.N.I.

Disqualification provisions in Scotland or England and WalesN.I.

7.(1) [F28 Where—N.I.

(a)under or by virtue of any provisions in force in Scotland or England and Wales corresponding to the provisions of this Schedule, a person is disqualified for inclusion in all lists prepared under or by virtue of—

(i)those provisions so in force, or

(ii)provisions so in force corresponding to the provisions of Part VI of this Order,

of persons performing, undertaking to provide, approved to assist in providing or approved to perform any of the services mentioned in paragraph 1(8), then,

(b)in relation to the service in question,]

that person shall, so long as that disqualification is in force, be disqualified for inclusion in any list and (if also the subject of a declaration under those provisions corresponding to a declaration of unfitness) be treated as if a declaration of unfitness had been made in respect of him.

(2) Where under the conditional disqualification provisions in Scotland or England and Wales—

(a)any conditions are imposed in relation to the provision [F29, assistance in provision or performance] by any person of any services mentioned in paragraph 1(8); or

(b)any conditions so imposed are varied,

the Department may, by a notice in writing given to each Health and Social Services Board and to the person in question, impose those conditions in relation to the provision by that person of those services under Part VI of this Order [F30, Article 15B arrangements or a pilot scheme].

(3) A notice under sub-paragraph (2) may make such modifications of the conditions as the Department considers necessary for them to have the like effect in relation to Northern Ireland as they have in relation to Scotland or (as the case may be) England and Wales, but only if the Department has previously given the person concerned written notice of the proposed modifications and an opportunity (in accordance with such requirements, if any, as may be prescribed) to make representations about them.

(4) Conditions imposed by a notice under sub-paragraph (2) shall cease to have effect if the Department withdraws the notice by giving written notice to the person concerned.

(5) In this paragraph “the conditional disqualification provisions in Scotland or England and Wales” means any provision in force in Scotland or England and Wales corresponding to paragraphs 4 and (so far as relating to conditional disqualifications) paragraph 5.

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RegulationsN.I.

8.(1) Regulations shall make provision—N.I.

(a)for inquiries under this Schedule to be held in accordance with such procedure as may be prescribed by or determined under the regulations and, in particular—

(i)for any person who is the subject of any such inquiry to have an opportunity of appearing, either in person or by counsel or solicitor or such other representative as may be prescribed, before, and of being heard by, the Tribunal, and of calling witnesses and producing other evidence on his behalf; and

(ii)for the hearing by the Tribunal to be in public if the person who is the subject of the inquiry so requests;

(b) for conferring on the Tribunal such powers as appear to the Department to be necessary for the purpose of holding inquiries under this Schedule, including power to require the attendance of witnesses and the production of documents, and to administer oaths; and

(c)for the publication of the decisions of the Tribunal under this Schedule and of the imposition and removal of any disqualification or conditions imposed by virtue of paragraph 7.

(2) Regulations under sub-paragraph (1)(a) may in particular provide that, where (apart from the regulations) it would be the duty of the Tribunal to inquire into [F31an efficiency case and a fraud case or an unsuitability case or any other combination of more than one such category of case] in respect of the same person, it may inquire into one case before inquiring into the other and, after proceedings in the first case are finally disposed of may if it thinks it appropriate adjourn the other case indefinitely.

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Applications for interim suspensionN.I.

9.(1) A Health and Social Services Board which has made representations under paragraph 1 may, at any time before the case is disposed of by the Tribunal, apply to the Tribunal for a direction to be made under sub-paragraph (3) in relation to the person to whom the case relates.N.I.

(2) A Health and Social Services Board may, if it has requested a review of a conditional disqualification on the ground mentioned in paragraph 5(3)(b) or (c), at any time before the review is concluded apply to the Tribunal for a direction to be made under sub-paragraph (3) in relation to the person to whom the review relates.

(3) If, on an application under this paragraph, the Tribunal is satisfied that either of the conditions for doing so is satisfied, it shall direct that sub-paragraph (5) shall apply to the person concerned as respects services of the kind to which the case in question, or the case to which the review in question, relates.

(4) The conditions for giving such a direction are—

(a)that it is necessary to do so in order to protect persons who are, or may be, provided with services under Part VI of this Order to which the case in question, or the case to which the review in question, relates;

(b)in, or in the case of a review relating to, a fraud case, that unless it does so there is a significant risk that—

(i)an act or omission within paragraph 1(7)(a) will occur; or

(ii)the investigation of the case of the review will be prejudiced.

(5) A person to whom this sub-paragraph applies shall—

(a)be deemed to have been removed from any relevant list in which his name is included;

(b)be disqualified for inclusion in any relevant list in which his name is not included; and

(c)be deemed to be a person in relation to whom there is in force a declaration of unfitness in relation to the provision [F32or performance] of services of the relevant kind.

(6) A direction under sub-paragraph (3) shall cease to have effect on the Tribunal's disposing of the case or review in connection with which it is made.

(7) In the application of sub-paragraph (5) to any person—

(a)“relevant list” means a list of persons [F33performing or] undertaking to provide services of the kind to which the direction applying the sub-paragraph to him relates; and

(b)“services of the relevant kind” means services of the kind to which that direction relates.

[F34(8) Regulations may provide that where a Health and Social Services Board, in accordance with regulations made under Article 57G, 61F, 62A or 63AA, suspends a person from a list prepared under regulations made under the provision in question and the Board applies to the Tribunal for a direction to be made under sub-paragraph (2) in relation to the person to whom the suspension applies, the suspension may continue until the Tribunal determines the application.]

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Suspension pending appealN.I.

10.(1) Where, on disposing of a case under paragraph 3, the Tribunal makes a general disqualification, it may, if it considers that either of the conditions mentioned in paragraph 9(4) is satisfied, direct that paragraph 9(5) shall apply or, if a direction has been given under paragraph 9(3), shall continue to apply to him as respects services of the kind to which the disqualification relates.N.I.

(2) A direction under sub-paragraph (1) shall cease to have effect—

(a)where no appeal against the general disqualification is brought, at the end of the period for bringing an appeal; and

(b)where an appeal against the disqualification is brought, when the appeal process has been exhausted.

(3) Where the power conferred by sub-paragraph (1) is exercisable by virtue of a disqualification which is not coupled with a declaration of unfitness, paragraph 9(5) shall have effect, in relation to the exercise of that power, with the omission of head (c).

Paragraphs 9 and 10: procedureN.I.

11.(1) Before making a direction under paragraph 9(3) or 10(1) in relation to any person, the Tribunal shall give him an opportunity—N.I.

(a)to appear before the Tribunal, either in person or by counsel or solicitor or such other representative as may be prescribed; and

(b)to be heard and to call witnesses and produce other evidence.

(2) Regulations may—

(a)make provision for, or for the determination of, procedure in relation to determining applications under paragraph 9 or the exercise of the power conferred by paragraph 10(1); and

(b)provide for the functions of the Tribunal under paragraph 9 or 10 to be carried out, or to be carried out in prescribed circumstances, by the chairman or a deputy chairman of the Tribunal.

Suspension provisions in Scotland or England and WalesN.I.

[F3512.(1) This paragraph applies where it appears to the Department that there is provision in Scotland or England or Wales under which a person may be dealt with in any way which corresponds (whether or not exactly) with a way in which a person may be dealt with under a provision of this Schedule.N.I.

(2) A decision in Scotland or England or Wales to deal with such a person in such a way is referred to in this paragraph as a “corresponding decision”.

(3) If this paragraph applies, the Department may make regulations providing for the effect to be given in Northern Ireland to a corresponding decision; and where the decision corresponds (whether or not exactly) with a decision which may be made under paragraph 4 or (so far as relating to conditional disqualification) paragraph 5 the regulations may provide for the effect to be given to be determined in the prescribed manner by the Department.

(4) That effect need not be the same as the effect of the corresponding decision in the place where it was made.]

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Payments in consequence of suspensionN.I.

13.(1) Regulations may provide for the making to persons to whom paragraph 9(5) or 12(2) applies of payments in consequence of the application of that provision.N.I.

(2) Regulations under sub-paragraph (1) may provide for the determination by the Department in a prescribed manner of anything for which provision may be made by regulations under that sub-paragraph.

Removal of persons from listN.I.

14.  Where any of the services mentioned in paragraph 1(8)(a) to (e) is administered pursuant to arrangements made by any Health and Social Services Board, and that Board is satisfied that any person whose name is on the list of persons undertaking to provide those services has never provided or has ceased to provide those services, it may remove his name from that list.N.I.

PART IIN.I.CONSTITUTION OF THE TRIBUNAL

MembershipN.I.

15.  The Tribunal shall consist of—N.I.

(a)a chairman appointed by the Lord Chief Justice;

(b)such number of deputy chairmen as the Lord Chief Justice may appoint;

(c)such number of persons as the Department may appoint for the purposes of this sub-paragraph;

(d)such number of medical practitioners as the Department may appoint for the purposes of this sub-paragraph;

(e)such number of medical practitioners having the qualifications prescribed under Article 62 as the Department may appoint for the purposes of this sub-paragraph;

(f)such number of dental practitioners as the Department may appoint for the purposes of this sub-paragraph;

(g)such number of ophthalmic opticians as the Department may appoint for the purposes of this sub-paragraph; and

(h)such number of pharmacists as the Department may appoint for the purposes of this sub-paragraph.

Chairman and deputy chairmanN.I.

16.  A person appointed as the chairman or a deputy chairman shall be either a barrister-at-law practising in Northern Ireland or a practising solicitor of the Supreme Court of not less than ten years' standing.N.I.

Other members of the TribunalN.I.

17.(1) Any appointment for the purposes of paragraph 15(c) shall be made after consultation with Health and Social Services Boards.N.I.

(2) Any appointment for the purposes of any of sub-paragraphs (d) to (h) of paragraph 15 shall be made after consultation with such organisations as the Department may recognise as representative of the profession or calling concerned.

Functions of the TribunalN.I.

18.(1) The functions of the Tribunal shall be exercised by three members consisting of—N.I.

(a)the chairman or a deputy chairman;

(b)a person appointed under paragraph 15(c); and

(c)a person appointed under such one of sub-paragraphs (d) to (h) of paragraph 15 as provides for the appointment of persons of the same profession or calling as that of the person concerned.

(2) In sub-paragraph (1)(c) as it has effect in relation to the functions mentioned below, the reference to the person concerned is—

(a)in the case of functions under paragraphs 1 to 4, to the person to whom the representations in question relate;

(b)in the case of functions under paragraph 5, to the person whose disqualification, conditional disqualification or declaration of unfitness is under consideration;

(c)in the case of functions under paragraph 9, to the person to whom the application in question relates; and

(d)in the case of functions under paragraph 10, to the person in relation to whom paragraph 9(5) may be made to apply or continue to apply.

(3) In sub-paragraph (1)(c) as it has effect in relation to functions of the Tribunal conferred by or under any statutory provision relating to the preferential treatment of medical practitioners on transferring to medical lists, the reference to the person concerned is a reference to the medical practitioner to whom the matter before the Tribunal relates.

(4) In the case of functions under paragraph 9 or 10, sub-paragraph (1) is subject to paragraph 11(2)(b).

RegulationsN.I.

19.  Regulations may provide for the appointment, tenure of office and vacation of office of members of the Tribunal.]N.I.

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