Commentary on Sections Part 2 – Powers in Relation to Health Bodies Schedule 3: NHS and other health appointments: suspension
236.Part 1 of Schedule 3 amends enactments to allow for suspension from office of chairs and members of NHS and other health bodies and to make provision required in consequence of the new powers of suspension. The powers to suspend will allow a flexible approach to enable investigation of allegations or circumstances while considering decisions about whether to remove chairs or members from office. The amendments provide (or enable provision to be made in regulations) for an initial period of suspension, procedures for reviewing, revoking or extending suspension, a right for a person suspended to have the suspension reviewed, the appointment of an interim chair or, in a case where there is a vice or deputy chair appointed by the body in question for the appointment by the Secretary of State of a new vice or deputy chair. The amendments also provide for the membership of a suspended person not to count where legislation provides for a maximum number of members. What is required by way of amendments to primary legislation to achieve the policy varies from case to case.
237.Part 2 of Schedule 3 makes supplementary provision.
238.Paragraph 1 of Schedule 3 amends Schedule 1A to the Medicines Act 1968 (provisions relating to Commission on Human Medicine and Committees) as follows—
239.New paragraph 6(2) of Schedule 1A enables the Secretary of State to make certain ancillary provisions in regulations as seem fitting relating to the terms on which members of the Commission on Human Medicine, committees established under section 4 of the 1968 Act or Expert Advisory Groups hold and vacate office. Such provision may be required to give full effect to the suspension regime.
240.Paragraph 2 amends Schedule 1 to the Licensing (Alcohol Education and Research) Act 1981 (the Alcohol Education and Research Council) as follows.
241.New paragraph 3A of Schedule 1 enables the Secretary of State to suspend a member of the Council from office if it appears to the Secretary of State that one of the grounds for termination of the member’s appointment may apply.
242.New paragraph 3B of Schedule 1 sets out details as to how the suspension process will operate including details about notification of suspension, the initial period of suspension, procedures for reviewing, revoking or extending a suspension and providing that a suspended member is not to be counted for the purposes of determining whether the membership of the Council exceeds 15 (the maximum permitted by the 1981 Act).
243.New sub-paragraph (4) of paragraph 4 of Schedule 1 has the effect that when the chairman is suspended from office as a member of the Council, he or she will also be suspended from office as chairman of the Council.
244.New paragraph 4A of Schedule 1 enables the Secretary of State to appoint an interim chairman where the chairman has been suspended, and sets out procedural details including for holding and vacating office, the term of office, resignation or termination of the appointment.
245.Paragraph 3 amends Schedule 1 to the Human Fertilisation and Embryology Act 1990 (the Human Fertilisation and Embryology Authority: supplementary provisions) as follows—
246.New paragraph 5A of Schedule 1 enables the Secretary of State to suspend a member from office as the chairman, deputy chairman or other member of the Human Fertilisation and Embryology Authority if it appears there may be grounds for the Secretary of State to declare the office vacant.
247.New paragraph 5B of Schedule 1 sets out details as to how the suspension process will operate, including details about notification of suspension, the initial period of suspension and reviewing, revoking or extending a suspension.
248.Paragraphs 4, 5 and 6 amend Schedule 1 to the Health Protection Agency Act 2004 (the Health Protection Agency) as follows—
249.New sub-paragraph (3A) of paragraph 1 of Schedule 1 to the Health Protection Agency Act 2004 has the effect that where a member of the Agency appointed by the Scottish Ministers, DHSSPSNI or the Welsh Ministers is suspended by that authority pursuant to regulations under the Schedule, another member could be appointed by the authority pursuant to paragraph 1(3). The suspended member would also not be counted toward the total number of members of the Agency prescribed in regulations.
250.New sub-paragraph (5A) of paragraph 1 of Schedule 1 will enable regulations made by the Secretary of State to address what would happen in relation to the deputy chair (who is appointed by the other members of the Agency, not the Secretary of State) if the chairman of the Agency were suspended. Regulations could enable the Secretary of State to direct that the appointment of the deputy chairman would end and provide for the Secretary of State to appoint another non-executive member to be deputy chairman.
251.New sub-paragraph (3) of paragraph 29 of Schedule 1 will enable the Secretary of State to include in regulations under the Schedule certain ancillary provisions that appear to the Secretary of State to be suitable. Such provisions may be required to give full effect to the proposed suspension regime.
252.Paragraph 7 amends Schedule 2 to the Human Tissue Act 2004 (the Human Tissue Authority) as follows.
253.New paragraph 9A of Schedule 2 to the Human Tissue Act 2004 enables the authority who appointed the chairman or a member (the Secretary of State in the case of the chairman or such other number of members as he or she thinks fit, the Welsh Ministers in the case of one member and DHSSPSNI in respect of one member) to suspend the chairman or member they have appointed as members of the Human Tissue Authority.
254.New paragraph 9B of Schedule 2 sets out procedural details about how the suspension process operates, including details about notification of suspension, the initial period of suspension and reviewing, revoking or extending a suspension. Sub-paragraph (9) of new paragraph 9B ensures that where a member appointed by the Welsh Ministers or DHSSPSNI was suspended by that authority another member can be appointed by the authority pursuant to paragraph 1(1)(c) or (d) of Schedule 2.
255.New paragraph 9C of Schedule 2 enables the Secretary of State to appoint an interim chairman where the chairman has been suspended, and sets out procedural details including for holding and vacating office, the term of office, or resignation or removal from office.
256.Paragraph 8 amends Schedule 4 to the Health Act 2006 (the Appointments Commission: supplementary) as follows.
257.New paragraph 6(2) of Schedule 4 to the Health Act 2006 enables regulations by the Secretary of State to address what will happen in relation to the vice-chairman (who is appointed by the members of the Commission, not the Secretary of State) if the chairman of the Appointments Commission is suspended from office. Regulations could enable the Secretary of State to direct that the appointment of the vice-chairman would end and provide for the Secretary of State to appoint another non-executive member to be vice-chairman.
258.Paragraphs 9, 10, 11, 12 and 13 amend Schedules 2 (Strategic Health Authorities), 6 (Special Health Authorities), 8 (Independent Regulator of NHS foundation trusts), and 19 (further provision about standing advisory committees) of the NHS Act as follows.
259.Substituted sub-paragraph (d) of paragraph 9 of Schedule 2 to the NHS Act amends the Secretary of State’s regulation-making power at paragraph 9 of the Schedule to enable regulations to provide for suspension of the chairman, vice-chairman or any member of a Strategic Health Authority.
260.Substituted sub-paragraph (d) of paragraph 5 of Schedule 6 amends the Secretary of State’s regulation-making power at paragraph 5 of Schedule 6 to enable regulations to provide for suspension of the chairman, vice-chairman or any member of a Special Health Authority.
261.New sub-paragraph (c) of paragraph 2(2) of Schedule 8 enables the Secretary of State to suspend the chairman or another member of Monitor on suspicion of there being grounds that would enable him or her to remove the member from office.
262.New paragraph 2A of Schedule 8 sets out procedural details about how the suspension process will operate, including details about notification of suspension, the initial period of suspension, reviewing, revoking or extending the suspension and that the suspended member will not be counted towards the maximum number of members of Monitor during the suspension.
263.New Paragraph 5A of Schedule 19 expands the regulation-making power at paragraph 1 of that Schedule to enable regulations to provide for the Secretary of State to appoint an interim chairman following removal or suspension from office of the chairman of a standing advisory committee. The amendment to paragraph 1(b) of Schedule 19 enables regulations under paragraph 1 to contain provision with respect to removal or suspension from office of members of any standing advisory committee.
264.Paragraphs 14, 15, 16 and 17 amend Schedules 5 (Special Health Authorities established under section 22), 10 (further provision about community health councils), and 13 (further provision about standing advisory committees) of the NHS (Wales) Act as follows.
265.Substituted sub-paragraph (d) of paragraph 5 of Schedule 5 to the NHS (Wales) Act amends the Welsh Ministers’ regulation-making power at paragraph 5 to enable regulations to provide for suspension of the chairman, vice-chairman or any member of a Special Health Authority.
266.New paragraph 2A of Schedule 10 enables regulations about the membership of community health councils to include provision, in cases where the chair elected by the members is removed or suspended from office, for the appointment by Welsh Ministers of a member as interim chair. The omission in paragraph 2(a) of Schedule 10 is consequential on this amendment.
267.New paragraph 5A of Schedule 13 enables regulations under paragraph 1(b) of that Schedule to provide for the appointment by Welsh Ministers of an interim chairman following removal or suspension of the elected chairman of a standing advisory committee. The amendment to paragraph 1(b) enables regulations under paragraph 1 to address removal or suspension from office of members of a standing advisory committee.
268.Paragraph 18 of Part 2 of Schedule 3 (supplementary) provides that in the case of a cross-border body, regulation-making powers in relation to such a body conferred on the Secretary of State and the Welsh Ministers by the amendments made in Part 1 of the Schedule are exercisable concurrently. This replicates the existing position in respect of regulation-making powers in relation to such bodies. A cross-border body is a body exercising functions, or carrying out activities in or with respect to Wales (or any part of Wales) and England (see section 158(1) of the Government of Wales Act 2006).
269.Paragraph 19 has the effect that the changes relating to suspension will apply to existing appointees to the bodies mentioned in Part 1 of the Schedule as well as to future appointees.