Commentary on Sections General and personal medical services, general dental services, general ophthalmic services and pharmaceutical services Section 25: Suspension and disqualification of practitioners
125.Section 25 makes provision for Health Authorities to suspend and remove (including contingent removal) practitioners from the relevant principal family health services list . This will enable Health Authorities to take fast and effective action where concerns arise about a practitioner involved in the provision of these services.
126.New section 49F of the 1977 Act provides powers for a Health Authority to remove practitioners from the relevant principal medical, ophthalmic, dental, pharmaceutical or dispensing doctor list on the grounds of inefficiency, fraud or unsuitability.
127.Section 49G provides powers for a Health Authority in an efficiency or fraud case to contingently remove, rather than remove, a practitioner from a principal list. If a Health Authority makes a contingent removal it must impose conditions on the practitioner with a view to ensuring that the identified risks of “prejudice to the efficiency of the NHS” or preventing further fraud are eliminated. Where a practitioner fails to meet any such conditions, a Health Authority can vary them, impose new ones, or remove the practitioner from the list. For example, a practitioner might be required to submit more detailed information than normal in order to justify claims for fees and allowances. In consequence of its decision to impose conditions, the Authority may vary the individual practitioner’s terms of service.
128.Section 49H(1) provides that in a fraud or unsuitability case a Health Authority may take action against a body corporate if the individuals in control of the body corporate themselves meet the criteria for fraud or unsuitability (whether or not they were running the body corporate at the time they first met the criteria) . Section 49H(2) means that a Health Authority may take action against a practitioner in a fraud case, if the fraud was committed by someone providing services on the practitioner’s behalf and the practitioner had not taken all reasonable steps to prevent the fraud.
129.Section 49I provides powers for a Health Authority to suspend a practitioner from their list whilst considering whether that person should be removed or contingently removed or while it waits for a decision affecting the practitioner of a Court or a professional regulatory body anywhere in the world. In deciding whether to suspend a practitioner, a Health Authority must be satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest. If a Health Authority suspends a practitioner, it must specify the period of suspension. This may not exceed a maximum period of six months, except in certain cases. One is a case falling within prescribed circumstances. Regulations could, for example, prescribe that such circumstances would include where there is an ongoing criminal investigation, fraud investigation, or an investigation by the professional regulatory body. The Health Authority may also refer the matter to the FHSAA to determine whether the suspension should continue exceptionally for longer than six months. Subsections (9) and (10) provide that the Secretary of State may make regulations about payments to suspended practitioners. These regulations may include provision about the amount of the payments or the method of calculating the amount, to be determined by the Secretary of State or someone appointed by the Secretary of State.
130.Section 49J provides that, if a Health Authority decides to remove a practitioner from a list, they may also suspend that person pending any appeal to the FHSAA, if they are satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest.
131.Section 49K provides that while a practitioner is suspended, he shall be treated as though he were not on the list, even though his name was still on it.
132.Section 49L provides for a Health Authority to review any decision to contingently remove or suspend a practitioner. A Health Authority will be obliged to review a decision if requested in writing to do so by the practitioner. Following a review a Health Authority may confirm the suspension or contingent removal, end a suspension it has made, or in the case of contingent removal vary the conditions, impose different conditions, remove all conditions or remove the practitioner from a list.
133.Section 49M provides practitioners with a right of appeal, by re-determination, to the FHSAA against any decision the Health Authority may make to remove or contingently remove them from a list, or any decision on a review of a contingent removal by the Health Authority. In addition, a practitioner can appeal to the FHSAA against any further decision to vary or change the conditions imposed on the practitioner pursuant to a contingent removal. An appeal must be lodged in writing to the FHSAA within 28 days of notice of the decision. The FHSAA may make any decision which could have been made by the Health Authority. If the FHSAA decides to remove the practitioner contingently, the Health Authority and the practitioner may each apply to the FHSAA for the conditions imposed on the practitioner to be varied, for different conditions to be imposed or for the contingent removal to be revoked. The Health Authority may remove the practitioner from their list if they determine that he has failed to comply with a condition. A Health Authority decision to remove or contingently remove a practitioner from a list may not take effect until the specified time to lodge an appeal with the FHSAA has passed and no appeal has been lodged, or if an appeal is lodged, until the FHSAA has disposed of the appeal.
134.Section 49N provides for a “national disqualification”. A decision by a Health Authority would be ‘local’ and would remove a practitioner from the list covering its area. Subsection (1) provides for the FHSAA to make a decision to nationally disqualify a practitioner from the principal, supplementary and services lists of all Health Authorities or any of these as specified by the FHSAA. Subsection (3) provides that the FHSAA may also impose a national disqualification on a practitioner if it dismisses an appeal against a Health Authority’s refusal to include that practitioner in a list (or in the case of a medical list, a refusal to nominate or approve that practitioner for inclusion). Subsection (4) provides that a Health Authority may apply to the FHSAA for national disqualification to be imposed on a person after removal from, or a refusal to admit to any of its lists (i.e. principal lists, supplementary lists, and services lists). The Health Authority would be required to apply for such disqualification within three months from the date of removal or their refusal. Subsection (6) provides that no Health Authority may subsequently include a person upon whom a national disqualification has been imposed in such a list, or if already included in a list, requires the Health Authority to remove the person from it. Subsection (7) provides for the FHSAA to review a national disqualification at any time. Following a review the FHSAA may confirm or revoke the disqualification. Subject to subsection (9) a person may not request such a review until at least two years from the date of the original national disqualification, or in the case of repeat applications, at least one year from the date of the last decision. Subsection (9) provides that, in prescribed circumstances, a person may request a review either before or after these time limits.
135.New section 49O provides for regulations requiring a Health Authority to notify prescribed persons or persons of prescribed descriptions of any decision they make under this group of sections: for example, to suspend, remove or contingently remove a practitioner from a list. They may also supply any related information.
136.In addition, section 49P provides for regulations stating the circumstances in which a practitioner whom a Health Authority are investigating in order to see whether there are grounds for removal, contingent removal or suspension, or in relation to whom a decision to remove or contingently remove has not yet taken effect, or who has been suspended pending an appeal to the FHSAA, may not withdraw from a list.
137.Section 49Q provides for regulations prescribing the procedure to be followed by Health Authorities in making a decision to suspend, remove or contingently remove a practitioner. Subsection (2) requires the regulations to include provision for a practitioner to be given notice of any allegation against him; for him to put his case at a hearing before a Health Authority makes a decision, and for him to be informed of a Health Authority’s decision, the reasons for it and his right of appeal.
138.Section 49R is intended to provide a mechanism for preventing a practitioner who has been disqualified from a health board list by a NHS tribunal in Scotland or similarly from an equivalent list in Northern Ireland from being included on any list in England and Wales. Specifically, it enables the Secretary of State to make provisions in regulations to recognise the decisions of Scottish and Northern Irish tribunals in England and Wales.