The Medical Act 1983 (Amendment) Order 2002

Substitution of Schedule 4 U.K.

14.  For Schedule 4 (proceedings before Professional Conduct, Health and Preliminary Proceedings Committees) substitute—

Section 43

“SCHEDULE 4 U.K. PROCEEDINGS BEFORE THE INVESTIGATION COMMITTEE, INTERIM ORDERS PANELS AND FITNESS TO PRACTISE PANELS

Procedure of and evidence before the Investigation Committee, Interim Orders Panels and Fitness to Practise Panels

1.— (1) Subject to the provisions of this paragraph, the General Council shall make rules for the Investigation Committee, Interim Orders Panels and Fitness to Practise Panels with respect to—

(a) the reference of cases to the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel; and

(b) the procedure to be followed and rules of evidence to be observed in proceedings before that Committee or such a Panel.

(2) Rules made under this paragraph in connection with the consideration by the Investigation Committee of whether to warn a person regarding his future conduct or performance under section 35C(6) above shall include provision—

(a) securing that notice shall be given to this effect to the person concerned;

(b) securing that the person concerned shall be entitled to make representations in writing to the Committee;

(c) securing that if the Committee determines that there should be an oral hearing, the person concerned shall, if he so requires, be entitled to be heard by the Committee;

(d) enabling the person concerned to be represented before the Committee by counsel or a solicitor, or (if the rules so provide and he so elects) by a person of such other description as may be specified in the rules; and

(e) securing that notice be served on the person concerned of any decision taken in relation to him by the Committee.

(3) Rules made under this paragraph in connection with the consideration by an Interim Orders Panel or a Fitness to Practise Panel of the making of an interim suspension order or an order for interim conditional registration under section 41A above, or in connection with the review of such an interim order, shall include provision—

(a) securing that notice that the proceedings are to be brought shall be given, at such time and in such manner as may be specified in the rules, to the person to whom the proceedings relate;

(b) securing that a person in relation to whom an order has been made shall, if he so requires, be entitled to be heard by the Panel on each occasion on which they review the order;

(c) enabling the person in relation to whom the order has been made to be represented before the Panel by counsel or a solicitor, or (if the rules so provide and he so elects) by a person of such other description as may be specified in the rules;

(d) for service on the person to whom the proceedings relate of notice of any decision taken in relation to him by the Panel; and

(e) determining when proceedings before the Panel are to be held in public and when in private (including provision securing that they are to be held in public if the person to whom the proceedings relate so requests).

(4) Rules made under this paragraph in connection with any other proceedings before a Fitness to Practise Panel shall include provision—

(a) securing that notice that the proceedings are to be brought shall be given, at such time and in such manner as may be specified in the rules, to the person to whose registration the proceedings relate;

(b) securing that any party to the proceedings shall, if he so requires, be entitled to be heard by a Panel;

(c) enabling any party to the proceedings to be represented before the Panel by counsel or a solicitor, or (if the rules so provide and the party so elects) by a person of such other description as may be specified in the rules;

(d) in relation to conduct, conviction or determination proceedings, for proceedings before a Panel to be held in public unless and to the extent that the rules provide otherwise; and

(e) in relation to health or performance proceedings, requiring proceedings before a Panel to be held in public if the person concerned so requests unless and to the extent that the rules provide otherwise.

(5) Rules made under this paragraph shall specify the relevant date for the purposes of sections 35A and 35B of this Act.

(6) Before making rules under this paragraph the General Council shall consult such bodies of persons representing medical practitioners, or medical practitioners of any description, as appear to the General Council requisite to be consulted.

(7) Rules under this paragraph shall not come into force until approved by order of the Privy Council.

(8) The Privy Council may approve such rules—

(a) as submitted to them; or

(b) subject to such modifications as appear to them to be requisite.

(9) Where the Privy Council propose to approve rules under this paragraph subject to modifications, they shall—

(a) notify the General Council of the modifications they propose to make; and

(b) consider any observations which the General Council may make on the modifications.

(10) In this paragraph—

• “conduct proceedings” means proceedings involving an allegation of a kind mentioned in section 35C(2)(a) above;

• “performance proceedings” means proceedings involving an allegation of a kind mentioned in section 35C(2)(b) above;

• “conviction proceedings” means proceedings involving an allegation of a kind mentioned in section 35C(2)(c) above;

• “health proceedings” means proceedings involving an allegation of a kind mentioned in section 35C(2)(d) above; and

• “determination proceedings” means proceedings involving an allegation of a kind mentioned in section 35C(2)(e) above.

2.— (1) For the purpose of proceedings in England or Wales or in Northern Ireland before—

(a) the Investigation Committee;

(b) an Interim Orders Panel; or

(c) a Fitness to Practise Panel,

the Committee or Panel may administer oaths, and any party to the proceedings may issue a writ of subpoena ad testificandum or duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action.

(2) Section 36 of the Supreme Court Act 1981 or section 67 of the Judicature (Northern Ireland) Act 1978 (which provide a special procedure for the issue of such writs so as to be in force throughout the United Kingdom) shall apply in relation to proceedings before the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel in England and Wales or, as the case may be, in Northern Ireland as those provisions apply in relation to causes or matters in the High Court or actions or suits pending in the High Court of Justice in Northern Ireland.

(3) For the purpose of proceedings before the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel in Scotland, the Committee or Panel may administer oaths and the Court of Session shall on the application of any party to the proceedings have the like power as in any action in that court—

(a) to grant warrant for the citation of witnesses and havers to give evidence or to produce documents before the Committee or Panel and for the issue of letters of second diligence against any witness or haver failing to appear after due citation;

(b) to grant warrant for the recovery of documents; and

(c) to grant commissions to persons to take the evidence of witnesses or to examine havers and receive their exhibits and productions.

3.   Where—

(a) several sittings of the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel or the General Council are required to enable the Committee, a Panel or the Council to dispose of a case; or

(b) on an appeal to the relevant court under section 40 of this Act, the case is remitted to the Registrar for him to refer the case to a Fitness to Practise Panel or to the General Council for the Panel or the Council to dispose of the case in accordance with directions given by the court,

the validity of the proceedings on the case before the Committee, Panel or Council, as the case may be, shall not be called into question by reason only that members of the Committee, Panel or Council who were present at a former meeting were not present at a later meeting of the Committee, Panel or Council or that members present at a later meeting were not present at a former meeting of the Committee, Panel or Council, as the case may be.

Reference and transfer of cases to the Investigation Committee

3A.— (1) Where in the course of any proceedings before a Fitness to Practise Panel, the Panel are of the opinion that a matter arises which ought to be investigated by the Investigation Committee or considered by another Fitness to Practise Panel—

(a) that Panel may give a direction to that effect to the Registrar; and

(b) that matter shall be referred by the Registrar to that Committee, or another Fitness to Practise Panel.

(2) Nothing in sub-paragraph (1) above shall prevent that Fitness to Practise Panel from considering that matter itself, whether or not it has reached a decision in the proceedings.

Professional Performance Assessments

5A.— (1) The General Council may make rules—

(a) authorising the giving of directions by any of—

(i) the Investigation Committee,

(ii) a Fitness to Practise Panel,

(iii) such other persons as may be specified in the rules,

requiring an assessment of the standard of a registered person’s professional performance to be carried out;

(b) specifying circumstances in which such an assessment may be carried out otherwise than in accordance with a direction.

(2) An assessment carried out by virtue of this paragraph shall be carried out by an Assessment Team in accordance with rules under this paragraph; and the rules shall, in particular, provide—

(a) for the constitution and proceedings of Assessment Teams;

(b) for the procedures to be followed by such Teams in carrying out assessments; and

(c) for the procedures to be followed following the making of a report by an Assessment Team.

(2A) An assessment of the standard of a registered person’s professional performance may include an assessment of his professional performance at any time prior to the assessment and may include an assessment of the standard of his professional performance at the time of the assessment.

(3) Rules under this paragraph may authorise a Fitness to Practise Panel to make directions of a kind which may be made under section 35D of this Act, for the suspension of, or the attachment of conditions to a person’s registration, where the person fails to comply with reasonable requirements imposed by an Assessment Team for the purposes of carrying out an assessment of the standard of his professional performance in accordance with a direction made under rules under this paragraph.

(3A) Rules under this paragraph may provide for the Investigation Committee to give a direction to the Registrar that a case be referred, or for the Registrar to refer a case, to a Fitness to Practise Panel for the purposes of that Panel making a direction under paragraph (3) above.

(5) An appeal shall lie to the relevant court (within the meaning of section 40(5) of this Act) from any direction of a Fitness to Practise Panel given by virtue of sub-paragraph (3) above, and on an appeal under this sub-paragraph the relevant court may—

(a) quash the direction;

(b) substitute for the direction any other direction which the Panel could have made; or

(c) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to be disposed of in accordance with the court’s directions,

and the decision of the court on any appeal under this sub-paragraph shall be final.

(6) An Assessment Team, for the purposes of carrying out an assessment of the standard of a person’s professional performance—

(a) may require the production of, inspect and take copies of any records (in whatever form they are held) arising out of or relating to the person’s professional practice; and

(b) where such records are kept otherwise than in legible form, may require a copy of them to be given to the Team in legible form.

(7) A person who, without reasonable excuse, obstructs an Assessment Team in the execution of their powers under sub-paragraph (6) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(8) Nothing in this paragraph shall require or permit any disclosure of information which is prohibited by or under any other enactment; but where information is held in a form in which the prohibition operates by reason of the fact that the information is capable of identifying an individual, an Assessment Team may, in exercising their powers under sub-paragraph (6) above, require that the information be put into a form in which it is not capable of identifying an individual.

(8A) In determining for the purposes of sub-paragraph (8) above whether a disclosure is not prohibited, by reason of being a disclosure of personal data which is exempt from the non-disclosure provisions of the Data Protection Act 1998 by virtue of section 35(1) of that Act, it shall be assumed that the disclosure is required under this paragraph.

(9) Sub-paragraphs (6) and (7) of paragraph 1 above shall apply in relation to rules made under this paragraph as they apply in relation to rules under that paragraph.

5B.— (1) A justice of the peace (including, in Scotland, a sheriff) may issue a warrant under this paragraph if satisfied by the evidence on oath of at least two members of an Assessment Team that there are reasonable grounds for suspecting that the team will require a warrant for the purposes of carrying out an assessment required by virtue of rules made under paragraph 5A above.

(2) A warrant under this paragraph shall authorise one or more members of the Assessment Team (who must, if so required, produce documents identifying themselves) together with any constables—

(a) to enter any building specified in the warrant, but not a dwelling-house, using such force as is reasonably necessary for the purpose; and

(b) to search the premises for the purposes of the exercise of the powers under paragraph 5A(6) above.

(3) A warrant under this paragraph shall continue in force until the end of the period of 21 days beginning with the day on which it is issued.

(4) A person who intentionally obstructs the exercise of any rights conferred by a warrant issued under this paragraph shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Proceedings for erasure of entries fraudulently or incorrectly made

6.— (1) The General Council shall make rules with respect to the discharge by the Council of their functions under section 39 of this Act.

(2) If the Council delegate their functions under that section to a Fitness to Practise Panel or other committee, rules shall make provision with respect to the discharge of those functions by the Panel or committee.

(3) Sub-paragraph (6) and (7) of paragraph 1 above shall apply in relation to rules made under this paragraph as they apply in relation to rules under that paragraph.

Legal assessors

7.— (1) For the purposes of advising—

(a) the Investigation Committee where it is considering giving a warning to a person;

(b) an Interim Orders Panel; or

(c) a Fitness to Practise Panel,

on questions of law arising in proceedings before them, there shall in all such proceedings be an assessor to the Panel who shall be appointed by the General Council and shall be—

(i) a person who has a 10 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990,

(ii) an advocate or solicitor in Scotland of at least 10 years’ standing, or

(iii) a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 10 years’ standing.

(2) An assessor may be appointed under this paragraph either generally or for any particular proceedings or class of proceedings.

(3) The Lord Chancellor or, in relation to proceedings in Scotland, the Secretary of State may make rules as to the functions of assessors appointed under this paragraph, including without prejudice to the generality of the powers to make such rules, the function of advising on the drafting of decisions.

(4) Rules made under this paragraph in connection with proceedings before the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel may in particular contain such provisions as appear to the Lord Chancellor or the Secretary of State expedient for—

(a) securing that where an assessor advises the Committee or a Panel on any question of law as to evidence, procedure or any other matter specified in the rules, he shall either—

(i) so advise in the presence of every party, or person representing a party, to the proceedings who appears at the proceedings, or

(ii) inform every such party or person of the advice that he has tendered, if the advice is tendered after the Committee or the Panel have begun their deliberations;

(b) securing that every such party or person shall be informed if in any case the Committee or the Panel do not accept the advice of the assessor on any such question,

and may also contain such incidental and supplementary provisions as appear to the Lord Chancellor or the Secretary of State expedient.

(5) The General Council may pay to persons appointed to act as assessors such remuneration as the Council may determine.

(6) The power to make rules under this paragraph shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Service of notifications of decisions

8.— (1) This paragraph applies to any notice required to be served on a person under section 35C(5), (7) or (8), 35E(1), 39(2), 41(10), 41A(5) or 45(7) of this Act.

(2) Any such notice may be so served—

(a) by delivering it to him;

(b) by leaving it at his proper address;

(c) by sending it by a registered post service; or

(d) by sending it by a postal service which provides for the delivery of the notice by post to be recorded.

(3) For the purposes of this paragraph and of section 7 of the Interpretation Act 1978 in its application to this paragraph, a person’s proper address shall be—

(a) his address in the register; or

(b) if the conditions in sub-paragraph (4) below are satisfied, his last known address.

(4) The conditions are that—

(a) the person’s last known address differs from his address in the register; and

(b) it appears to the Registrar that a letter sent to the person at his last known address is more likely to reach him.

(5) For the purposes of this paragraph—

(a) the serving of a notice effected by sending it by post shall be deemed to have been effected at the time when the letter containing it would be delivered in the ordinary course of post; and

(b) so much of section 7 of the Interpretation Act 1978 as relates to the time when service is deemed to have been effected shall not apply to a notice sent by post.

Extension of time for appealing

9.   Where—

(a) any notice required by section 35E(1) or 39(2) of this Act to be served on a person by the Registrar is served on him by sending it by post; and

(b) the Registrar is satisfied, on an application of that person, that the person did not receive the notice within 14 days beginning with the day of the giving of the decision to which the notification relates,

the Registrar may, if he thinks fit, by authorisation in writing extend the time within which an appeal under section 40 of this Act may be brought against the decision.

Taking effect of directions for erasure, suspension or conditional registration and of variations of conditions of registration

10.— (1) A direction for erasure, for suspension or for conditional registration given by a Fitness to Practise Panel under section 35D of this Act, a variation by a Fitness to Practise Panel under section 35D(12) or a direction for erasure given by the General Council under section 39 of this Act shall take effect—

(a) where no appeal under section 40 is brought against the direction or variation within the time specified in that section, on the expiration of that time;

(b) where such an appeal is so brought but is withdrawn or dismissed for want of prosecution, on the withdrawal or dismissal of the appeal;

(c) where such an appeal is so brought and is not withdrawn or dismissed for want of prosecution, if and when the appeal is dismissed.

(2) Where the time for appealing against a direction or variation is extended by an authorisation under paragraph 9 above—

(a) sub-paragraph (1) shall apply to the direction as if the reference in paragraph (a) to the time specified in section 40 of this Act were a reference to that time as so extended; and

(b) if the authorisation is given after the expiration of the time specified in section 40 of this Act, the direction or variation shall be deemed not to have taken effect on the expiration of that time,

and any reference in this Act to the time when such a direction takes effect in accordance with this paragraph shall be construed accordingly.

(3) Any reference in this paragraph to a direction for suspension or for conditional registration includes a reference to a direction extending a period of suspension or conditional registration.

11.— (1) If, while a person’s registration is suspended under section 35D(2) of this Act, a direction is given under subsection (5) or (8)(a) or (c) of that section, the suspension of his registration shall continue to have effect throughout any period which may intervene between the time when, but for this sub-paragraph, the suspension of his registration would end and the time when the direction takes effect in accordance with paragraph 10 above or an appeal against it under section 40 of this Act is (otherwise than by the dismissal of the appeal) determined.

(2) If, on the determination of an appeal under section 40 of this Act, a direction extending a current period of suspension for a further period takes effect after the time when, but for sub-paragraph (1) above, the current period of suspension would have ended, that further period shall be treated as having started to run from that time.

(3) If, while a person’s registration is subject to conditions imposed under section 35D(2) of this Act, a direction is given under subsection (10) or (12) of that section the conditions attached to his registration shall continue to attach to it throughout any period which may intervene between the time when, but for this sub-paragraph, his registration would cease to be conditional and the time when the direction takes effect in accordance with paragraph 10 above or an appeal against it under section 40 of this Act is (otherwise than by the dismissal of the appeal) determined.

(4) If, on the determination of an appeal under section 40 of this Act, a direction extending a current period of conditional registration for a further period takes effect after the time when, but for sub-paragraph (3) above, the current period of conditional registration would have ended, that further period shall be treated as having started to run from that time.

Recording of directions for suspension or conditional registration

12.   Where a direction under section 35D of this Act or under rules made by virtue of paragraph 5A(3) of this Schedule for suspension or for conditional registration takes effect in relation to any person the Registrar shall record in the register the fact that that person’s registration is suspended or subject to conditions.

Meaning of “party”

13.   In this Schedule “party”, in relation to proceedings before the Investigation Committee, an Interim Orders Panel or Fitness to Practise Panel means any person to whose registration the proceedings relate, or the Solicitor to the General Council.”.