Health and Social Care Act 2008

Prospective

11 After section 40 of the 1983 Act insert— E+W+S+N.I.

“40A Reference of cases by General Council to court

(1) This section applies to—

(a) a decision of the Adjudicator under section 35D giving—

(i) a direction for suspension, including a direction extending a period of suspension;

(ii) a direction for conditional registration, including a direction extending a period of conditional registration;

(iii) a direction varying any of the conditions imposed by a direction for conditional registration; and

(b) a decision of the Adjudicator under paragraph 5A(3E) of Schedule 4 giving—

(i) a direction for suspension;

(ii) a direction for conditional registration.

(2) This section also applies to—

(a) a decision of the Adjudicator under section 35D not to give a direction falling within subsection (1)(a) or a direction for erasure (whether because of a finding that the person's fitness to practise is not impaired or otherwise);

(b) a decision of the Adjudicator under section 35D—

(i) giving a direction that a suspension be terminated;

(ii) revoking a direction for conditional registration or a condition imposed by such a direction;

(c) a decision of the Adjudicator under section 41 giving a direction that a person's name be restored to the register; and

(d) a decision of the Adjudicator under paragraph 5A(3E) of Schedule 4 not to give a direction falling within subsection (1)(b).

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

(4) If the General Council consider that—

(a) a relevant decision falling within subsection (1) is unduly lenient, whether because the findings relating to fitness to practise are inadequate, or because the direction given does not adequately reflect the findings that have been made, 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 General Council to take action under this section, the General Council may refer the case to the relevant court.

(5) In the case of a relevant decision falling within subsection (1), the General Council may not refer a case after the end of the period of 40 days beginning with the day which is the last day on which the person to whom the relevant decision relates can appeal against it.

(6) In the case of a relevant decision falling within subsection (2), the General Council may not refer a case after the end of the period of 40 days beginning with the day on which the General Council receives notice of the relevant decision in accordance with rules made by the Adjudicator under section 105(4)(a)(ii) of the Health and Social Care Act 2008.

(7) If the General Council do refer a case—

(a) the case is to be treated by the court to which it has been referred as an appeal by the General Council against the relevant decision; and

(b) the Adjudicator 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 Adjudicator; or

(d) remit the case to the Adjudicator 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.

(9) If the General Council do refer a case, the Registrar must without delay serve on the person to whom the relevant decision relates notification of the reference of the case to the court.

(10) In subsection (4) “relevant court” has the meaning given by section 40(5).”