SCHEDULE 2Appointments, tenure, and conduct of business by the Authority
PART 1Appointment and tenure of office of chairperson and non-officer members, and provision about interim arrangements
Appointment and tenure of chairperson and non-officer members1
1
The chairperson and members of the Authority who are not officers of the Authority (in this Schedule, “non-officer members”) are to be appointed by the Secretary of State.
2
Subject to sub-paragraph (3) of this paragraph and to paragraph 3, the term of office of the chairperson and non-officer members is to be for such period as the Secretary of State specifies on making the appointment.
3
During the transitional period, the Secretary of State may make appointments under sub-paragraph (1) which—
a
may be terminated upon written notice by the Secretary of State; and
b
in any event terminate at the end of the transitional period if it not previously terminated.
4
Subject to paragraph 3, the chairperson and any non-officer member are, on the termination of their respective terms of appointment, to be eligible for re-appointment.
Appointment and tenure of chief executive and other officers, including interim arrangements2
1
On commencement of this Order, the chairperson must, in consultation with, and with the consent of, the Secretary of State, appoint on such terms as may be approved by the Secretary of State an officer member to act temporarily as chief executive of the Authority during the transitional period and a second officer member to act temporarily as director of finance during the transitional period (“interim appointments”).
2
The officer member appointed to act temporarily as chief executive under sub-paragraph (1) must have knowledge of operational aspects of the health service and recent experience of heading a body or division within a body with functions in relation to the prevention, detection and investigation of fraud similar to those to be exercised by the Authority.
3
During the transitional period, the chairperson, may, with the consent of the Secretary of State—
a
give to one or both officer members appointed under sub-paragraph (1) notice of termination of appointment; and
b
in any circumstances where an interim appointment has ended, make such further interim appointment, on such terms as may be approved by the Secretary of State, as the chairperson thinks fit to ensure the proper discharge of the Authority’s functions.
4
An interim appointment made under sub-paragraph (1) or (3)(b) must terminate no later than the end of the transitional period, unless, with the consent of the Secretary of State, it is extended temporarily by agreement between the person holding the appointment and the chairperson.
5
Except where the chairperson is required or chooses to make an interim appointment under sub-paragraph (1) or (3)(b), the chairperson must appoint, on such terms as may be approved by the Secretary of State, an officer member to act as chief executive of the Authority and a second officer member to act as director of finance of the Authority.
6
At any time, the chairperson may appoint, on such terms as may be approved by the Secretary of State, an officer member in addition to the chief executive and director of finance.
7
Before taking any of the actions mentioned in sub-paragraphs (1) and (3) to (6), the chairperson must obtain the written agreement of the non-officer members.
8
Where for any period the chief executive is suspended from discharging the duties of a chief executive of the Authority—
a
the chief executive must also be suspended for that period from performing the functions ordinarily exercised by the chief executive as a member, and
b
any person appointed to act in place of the chief executive must also be appointed to perform the functions that the chief executive ordinarily exercised as a member of the Authority for that period.
9
The chief executive may appoint further officers who are not members of the Authority, subject, in the case of appointments at Agenda for Change grade 8b or above, to the agreement of the chairperson.
10
A person appointed under sub-paragraph (1), (3)(b), (5) or (6) is, on the termination of the terms of that appointment, eligible for re-appointment.
Disqualification of persons for appointment (chairperson and non-officer members)3
1
Subject to paragraph 4, a person is disqualified for appointment as the chairperson or as a non-officer member if any of the following apply—
a
the person holds a position as chairperson, member, officer, governor or director with, or is employed by, or contracted in any capacity to provide services to—
i
any health service body; or
ii
any person or body which is not a health service body but which provides services under a commissioning contract within the meaning of section 6E of the NHS Act;
b
the person has—
i
within the previous five years been convicted in the United Kingdom of any criminal offence not mentioned in sub-paragraph (c) or been convicted elsewhere of any offence which, if committed in any part of the United Kingdom would constitute a criminal offence not mentioned in sub-paragraph (c);
ii
as a consequence of that conviction, been sentenced to a sentence of imprisonment (whether suspended or not); and
iii
neither the conviction has been quashed nor the sentence reduced to a sentence other than a sentence of imprisonment (whether suspended or not) on appeal;
c
the person has, on or after attaining the age of 18 years, in respect of acts or omissions occurring on or after the person’s attaining the age of 18 years—
i
been convicted in the United Kingdom of any offence or been convicted elsewhere of any offence which, if committed in any part of the United Kingdom would constitute a criminal offence involving fraud, theft or bribery and the conviction has not been quashed on appeal;
ii
been party to an agreement which is the subject of a decision under section 31 (decisions following an investigation) of the Competition Act 199816, or subject to directions under section 32 (directions in relation to agreements) or 33 (directions in relation to conduct) arising from such a decision, including interim directions under section 35 (interim measures), of the Competition and Markets Authority in respect of prohibitions in Chapter 1 (agreements preventing, restricting or distorting competition) or Chapter 2 (abuse of dominant position) of Part 1 of the Competition Act 1998 or under Article 101(1) or 102 of the Treaty on the Functioning of the European Union, unless the decision has been successfully appealed under section 46 (appealable decisions) or 49 (further appeals) of the Competition Act 199817 and appeal proceedings have concluded; or
iii
been subject to, or been party to an agreement which was, the subject of a regulatory or judicial finding or decision, other than one which was successfully reviewed or appealed, in respect of matters similar to those mentioned in para (ii) pursuant to the repealed legislation mentioned in sections 1 and 17 of the Competition Act 1998;
d
the person is the subject of a bankruptcy order within the meaning of section 381 of the Insolvency Act 198618, or of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 198619, or of a debt relief restrictions order20 or an interim debt relief restrictions order under Schedule 4ZB to that Act, or is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 2A to the Insolvency (Northern Ireland) Order 198921 or sequestration of the person’s estate has been awarded and not recalled, or the person is a debtor who has not been discharged within the meaning of the Bankruptcy (Scotland) Act 201622, or is the subject of a bankruptcy restrictions order or interim bankruptcy restrictions order under Part 13 of that Act (bankruptcy restrictions orders etc);
e
the person has been dismissed within the previous five years, otherwise than by reason of redundancy, from any paid employment with a health service body or any person or body which is not a health service body but which provides services under a commissioning contract within the meaning of section 6E of the NHS Act;
f
the tenure of office of the person as the chairperson, a member, a director or a governor of a health service body has been terminated on the grounds—
i
that it was not in the interests of the health service body or of the health service that the person should continue to hold the office;
ii
of non-attendance at meetings;
iii
of non-disclosure of a pecuniary interest; or
iv
of misbehaviour, misconduct or failure to carry out the duties of the post or position held by the person;
g
the tenure of office of the person as the chairperson, a member, a director or a governor of any person or body which is not a health service body but which provides services under a commissioning contract within the meaning of section 6E of the NHS Act has been terminated on the grounds of—
i
non-disclosure of a pecuniary interest; or
ii
misbehaviour, misconduct or failure to carry out the duties of the post or position held by the person;
h
the person is subject to a disqualification order or undertaking under the Company Directors Disqualification Act 198623, the Companies (Northern Ireland) Order 198624, the Company Directors Disqualification (Northern Ireland) Order 200225 or to an order made under section 429(2)(b) of the Insolvency Act 198626 (disabilities on revocation of administration order against an individual);
i
the person has been—
i
removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which the person was responsible or to which the person was privy, or which was contributed to or facilitated by the person’s conduct; or
ii
disqualified from being a charity trustee in Scotland pursuant to section 69 of the Charities and Trustee Investment (Scotland) Act 200527;
j
the person—
i
was refused inclusion in a list maintained pursuant to regulations made under sections 91 (persons providing primary medical services), 103 (persons providing primary dental services), 123 (persons performing primary ophthalmic services) or 147A (performers of pharmaceutical services and assistants) of the NHS Act28 by reason of any matter concerning the person’s honesty or probity;
ii
was included in such a list but that inclusion is suspended or subject to conditions by reason of any matter concerning the person’s honesty or probity;
iii
was included in such a list but has been removed or contingently removed from that list by reason of any matter concerning the person’s honesty or probity;
iv
is similarly prevented from providing primary medical, dental ophthalmic or pharmaceutical services elsewhere in the United Kingdom in circumstances corresponding to those set out in paragraphs (i) to (iii) in relation to England,
and in relation to whether a matter concerns the person’s honesty or probity, the question, in any case that is disputed by the person concerned, is to be determined by the Secretary of State or, where requested by the Secretary of State in cases not concerning the chairperson’s qualification to hold office, the chairperson.
2
Subject to sub-paragraph (3), for the purposes of this paragraph, “health service bodies” means—
a
the Board29;
b
a clinical commissioning group30;
c
an NHS trust31;
d
an NHS foundation trust32;
e
a special health authority;
f
Monitor33;
g
a combined authority or local authority in England carrying out functions provided for in the NHS Act, pursuant to regulations under the Local Democracy, Economic Development and Construction Act 200934 or, as the case may be, an order under the Cities and Local Government Devolution Act 201635, or to arrangements made under section 13Z, 13ZA, 13ZB, 14Z3A or 75 of the NHS Act36;
h
Care Quality Commission37;
i
Health Education England38;
j
Health Research Authority39
k
Health and Social Care Information Centre40;
l
Human Fertilisation and Embryology Authority41;
m
Human Tissue Authority42;
n
National Institute for Health and Care Excellence43;
o
an executive agency of the Secretary of State for Health.
3
For the purposes of sub-paragraph (1)(a), in the case of an appointment of a non-officer member other than the chairperson the first reference in that sub-paragraph to “health service body” does not include reference to an NHS trust or foundation trust.
4
For the purposes of sub-paragraph (1)(b) and (c), the date of conviction is deemed to be the date on which the ordinary period allowed for making an appeal or application with respect to the conviction expires or, if such an appeal or application is made, the date on which the appeal or application is finally disposed of or abandoned or fails by reason of its not being prosecuted.
5
In relation to a person who would otherwise be disqualified under sub-paragraph (1)(c), the Secretary of State may in his discretion decide that a conviction for an offence of theft or fraud is not to disqualify a person from office if the offence is one it is appropriate to overlook by reason of the youth of the person at the time of the commission of the offence or the impact of the offence or other mitigating factors.
6
For the purposes of sub-paragraph (1)(e), a person is not to be treated as having been in paid employment by reason only of having been—
a
in the case of an NHS foundation trust, the chairperson, a governor or a non-executive director of the trust;
b
in the case of a clinical commissioning group, the chair or a member of the governing body of the group; or
c
in the case of any other health service body, the chairperson, a member or a director of the health service body in question.
Cessation of disqualification4
1
Subject to paragraph (2), where a person is disqualified under paragraph 3(1)(e), (f), (g), (i) or (j) that person may, after the expiry of two years beginning on the date of the dismissal, removal, refusal or suspension (as the case may be), apply in writing to the Secretary of State to remove the disqualification, and the Secretary of State may direct that the disqualification is to cease.
2
Where the Secretary of State refuses an application to remove a disqualification, no further application may be made by that person until the expiry of the period of two years beginning with the date of the application, and this sub-paragraph is to apply to any subsequent application.
Termination of tenure of office of chairperson and non-officer members5
1
The chairperson or a non-officer member may resign from that office at any time during the term of that office by giving notice in writing to the Secretary of State.
2
Where the Secretary of State is of the opinion that it is not in the interests of, or conducive to the good management of, the Authority or of the health service that the chairperson or non-officer member should continue to hold office, the Secretary of State may forthwith terminate the chairperson’s or non-officer member’s tenure of office by giving the chairperson or that member notice in writing to that effect.
3
If the chairperson or a non-officer member fails to attend three successive meetings of the Authority the Secretary of State must forthwith terminate that person’s tenure of office unless satisfied that—
a
the absence was due to a reasonable cause; and
b
the person in question will be able to attend meetings of the Authority within such a period as the Secretary of State considers reasonable.
4
Where a person has been appointed to be the chairperson or a non-officer member, and becomes disqualified for appointment under paragraph 3, the chairperson or that member, as the case may be, must notify the Secretary of State in writing of such disqualification.
5
Where it comes to the notice of the Secretary of State (whether under sub-paragraph (4) or otherwise) that at the time of a person’s appointment or later that person was so disqualified, the Secretary of State must forthwith declare that the person in question was not duly appointed and notify that person in writing to that effect, and upon receipt of any such notification, the person’s tenure of office, if any, must be terminated, and the person must cease to act as chairperson or member, as the case may be.
6
If it appears to the Secretary of State that the chairperson or a non-officer member has failed to comply with paragraph 14 (disability on account of pecuniary interest) the Secretary of State may forthwith terminate that person’s tenure of office by giving the person notice in writing to that effect.
Suspension of appointee6
1
The Secretary of State may suspend a chairperson or a non-officer member (“an appointee”) from office while the Secretary of State considers whether—
a
to remove the appointee from office under paragraph 5(2), (3) or (6); or
b
the appointee has become disqualified for appointment under paragraph 3, or was so disqualified at the time of appointment, and if so, in the case of disqualification under paragraph 3(1)(c), whether discretion should be exercised under paragraph 3(5).
2
The Secretary of State must give notice in writing to the appointee of the decision to suspend and the suspension takes effect on receipt of such notification.
3
A notice under sub-paragraph (2) may be—
a
delivered in person, in which case the appointee is treated as receiving it when it is delivered; or
b
sent by first class post to the appointee’s last known address, in which case the appointee is treated as receiving it on the third day after the day on which it was posted.
4
The initial period of suspension must not exceed 6 months.
5
The Secretary of State may review the appointee’s suspension at any time.
6
The Secretary of State must review the appointee’s suspension if requested in writing by the appointee to do so, but need not carry out a review less than 3 months after the beginning of the initial period of suspension.
7
A review must take into account any representations made by the appointee.
8
Following a review, the Secretary of State may—
a
revoke the suspension; or
b
suspend the appointee for another period of not more than 6 months from the expiry of the current period.
9
The Secretary of State must revoke the suspension if at any time the Secretary of State decides that—
a
there are no grounds to remove the chairperson or non-officer member from office under paragraph 5(2), (3) or (6);
b
there are such grounds but the Secretary of State does not remove the appointee from office as chairperson or non-officer member, as the case may be, under these provisions; or
c
the appointee is not disqualified for appointment under paragraph 3.
Suspension of chairperson: appointment of vice-chairperson7
1
This paragraph applies where the chairperson is suspended under paragraph 6.
2
If a vice-chairperson has been appointed under paragraph 8(1) that appointment is to cease to have effect.
3
The Secretary of State may re-appoint the person mentioned in sub-paragraph (2) or appoint another non-officer member to be the vice-chairperson.
4
The appointment of a vice-chairperson under sub-paragraph (3) is to be for a period, not exceeding the shorter of—
a
the period for which the chairperson is suspended; and
b
the remainder of the non-officer member’s term as a member of the Authority.
5
When the period for which a person is appointed as vice-chairperson expires, the Secretary of State may re-appoint that person, or appoint another non-officer member as vice-chairperson.
6
Any person appointed under sub-paragraph (3) or (5) may at any time resign from the office of vice-chairperson by giving notice in writing to the Secretary of State.
7
A notice given under sub-paragraph (6) is to take effect—
a
where a date is specified in the notice as that on which the resignation is to take effect, on that date; or
b
in any other case, on the date that the notice is received by the Secretary of State.
8
The Secretary of State may terminate a person’s appointment as vice-chairperson under sub-paragraph (3) or (5) if the Secretary of State is of the opinion that it would be in the best interests of the Authority for another non-officer member of the Authority to be vice-chairperson.
9
If—
a
a person resigns from the office of vice-chairperson under sub-paragraph (6); or
b
the Secretary of State terminates a person’s appointment as vice-chairperson under sub-paragraph (8),
the Secretary of State may appoint another non-officer member as vice-chairperson.
Appointment of vice-chairperson8
1
The chairperson and members may appoint one of the non-officer members to be vice-chairperson for such period, not exceeding the remainder of that non-officer member’s term as a member, as they may specify on making the appointment.
2
Any member so appointed may at any time resign from the office of vice-chairperson by giving notice in writing to the chairperson.
3
This paragraph does not apply where paragraph 7 applies.
Powers of vice-chairperson9
1
This paragraph applies where—
a
the chairperson of the Authority is suspended under paragraph 6 and a non-officer member of the Authority is appointed to be vice-chairperson under paragraph 7; or
b
a non-officer member of the Authority is appointed to be vice-chairperson under paragraph 8, and the chairperson of the Authority—
i
has died or has ceased to hold office; or
ii
is unable to perform the chairperson’s duties owing to illness, absence from England or any other cause.
2
Where this paragraph applies—
a
the vice-chairperson is to act as chairperson until a new chairperson is appointed or the existing chairperson resumes the chairperson’s duties, as the case may be; and
b
the references to the chairperson of the Authority in this Order are, so long as there is no chairperson able to perform the chairperson’s duties, to be taken to include references to the vice-chairperson.