The NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017

Disqualification of persons for appointment (chairperson and non-officer members) E+W

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 1998(1), 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 1998(2) 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 1986(3), or of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986(4), or of a debt relief restrictions order(5) 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 1989(6) 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 2016(7), 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 1986(8), the Companies (Northern Ireland) Order 1986(9), the Company Directors Disqualification (Northern Ireland) Order 2002(10) or to an order made under section 429(2)(b) of the Insolvency Act 1986(11) (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 2005(12);

(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 Act(13) 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) [F1 NHS England];

(b) a clinical commissioning group(14);

(c) an NHS trust(15);

(d) an NHS foundation trust(16);

(e) a special health authority;

(f) Monitor(17);

(g) a combined authority [F2 , combined county 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 2009(18) [F3 or under the Levelling-up and Regeneration Act 2023] or, as the case may be, an order under the Cities and Local Government Devolution Act 2016(19), or to arrangements made under section 13Z, 13ZA, 13ZB, 14Z3A or 75 of the NHS Act(20);

(h) Care Quality Commission(21);

(i) Health Education England(22);

(j) Health Research Authority(23)

(k) Health and Social Care Information Centre(24);

(l) Human Fertilisation and Embryology Authority(25);

(m) Human Tissue Authority(26);

(n) National Institute for Health and Care Excellence(27);

(o) an executive agency of the Secretary of State for Health [F4 and Social Care].

(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.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

F2 Words in Sch. 2 para. 3(2)(g) inserted (17.4.2024) by The Levelling Up and Regeneration Act 2023 (Consequential Amendments) (England) Regulations 2024 (S.I. 2024/418), regs. 1(2), 5(a)

F3 Words in Sch. 2 para. 3(2)(g) inserted (17.4.2024) by The Levelling-up and Regeneration Act 2023 (Consequential Amendments) (England) Regulations 2024 (S.I. 2024/418), regs. 1(2), 5(b)

F4 Words in Sch. 2 para. 3(2)(o) inserted (11.4.2018) by The Secretaries of State for Health and Social Care and for Housing, Communities and Local Government and Transfer of Functions (Commonhold Land) Order 2018 (S.I. 2018/378), art. 1(2), Sch. para. 21(v) (with art. 14)

Commencement Information

I1 Sch. 2 para. 3 in force at 1.11.2017, see art. 1(1)

(1)

1998 c. 41. Chapters 1, 2 and 3 of Part 1 have been amended by section 70 of, and Schedule 2 to, the Criminal Justice and Police Act 2001 (c. 16); section 40 of, and Sched 9 to, the Constitutional Reform Act 2005 (c. 4); sections 198, 203, 207 and 278 of, and Schedules 25 and 26 to, the Enterprise Act 2002 (c. 40); by SI 2004/1261; by SI 2011/1043; by SI 2012/1809; by sections 26(3), 39 to 42, 44, 45 and 57 of, and Schedules 5, 13 and 15 to, the Enterprise and Regulatory Reform Act 2013 (c. 24).

(2)

Section 46 was amended by section 21 of, and paragraphs 1 and 2 of Schedule 5 to, the Enterprise Act 2002 (c. 40); by regulation 4 of, and Schedule 1 to, SI 2004/1261; by article 3(1) of, and Part 1 of the Schedule to, SI 2012/1809; by section 26(3) of, and paragraphs 1 and 26 of Part 1 of Schedule 5 to, the Enterprise and Regulatory Reform Act 2013 (c. 24). Section 49 was amended by section 21 of, and paragraphs 1 and 4 of Schedule 5 to, the Enterprise Act 2002; by section 81 of, and paragraphs 1 and 9 of Schedule 8 to, the Consumer Rights Act 2015 (c. 15), and by regulation 3 of, and Schedule 2 to, SI 2017/385.

(3)

1986 c. 45.

(4)

Schedule 4A to the Insolvency Act 1986 was inserted by section 257(2) of, and Schedule 20 to, the Enterprise Act 2002 (c.40), and amended by section 71(3) of, and paragraph 63 of Schedule 19 to, the Enterprise and Regulatory Reform Act 2013, and by section 135(2) of the Small Business, Enterprise and Employment Act 2013 (c. 26). By virtue of paragraph 8 of Schedule 4A to the Insolvency Act 1986, the reference to a person subject to a bankruptcy restrictions order includes a reference to a person in respect of whom a bankruptcy restrictions undertaking has effect under that Schedule.

(5)

Schedule 4ZB to the Insolvency Act 1986 was inserted by section 108(2) of and Schedule 19 to the Tribunals, Courts and Enforcement Act 2007 (c. 15). By virtue of paragraph 8 of Schedule 4ZB to the Insolvency Act 1986, the reference to a person subject to a debt relief restrictions order includes a reference to a person in respect of whom a debt relief restrictions undertaking has effect under that Schedule.

(6)

Schedule 2A to the Insolvency (Northern Ireland) Order 1989 (SI 1989/2405 (N.I. 19)) was inserted by article 13(2) of, and Schedule 5 to, the Insolvency (Northern Ireland) Order 2005 (SI 2005/1455 (N.I. 10)).

(7)

2016 asp 21.

(8)

1986 (c. 46). See in particular section 1A, inserted by section 6 of the Insolvency Act 2000 (c. 39) and since amended by section 111 of, and paragraphs 1 and 3 of Schedule 7 to, the Small Business, Enterprise and Employment Act 2015 (c. 26).

(9)

SI 1986/1032 (N.I. 6).

(10)

SI 2002/3150 (N.I. 4).

(11)

Schedule 16 to the Tribunal, Courts and Enforcement Act 2007 (c. 15) amends section 429 but the amendment is not yet in force.

(12)

2005 asp 10.

(13)

Section 91 was amended by section 55(1) of, and paragraph 35 of Part 4 of Schedule 4 to, the Health and Social Care Act 2012 (c. 7) (“the 2012 Act”). Section 106 was amended by section 55(1) of, and paragraph 47 of Part 5 of Schedule 4 to, the 2012 Act. Section 123 was amended by section 55(1) of, and paragraph 60 of Part 6 of Schedule 4 to, the 2012 Act. Section 147A was inserted by section 208(2) of the 2012 Act. Subsection 3 of section 147A was amended by paragraphs 120 and 123 of Part 7 of Schedule 9 to the Protection of Freedoms Act 2012 (c. 9). See also section 147B which was inserted by the same provision in the 2012 Act and makes further provision about regulations under section 147A.

(14)

Section 14D of the 2006 Act provides for the establishment of clinical commissioning groups. That section was inserted by section 25(1) of the 2012 Act.

(15)

Section 25 of the 2006 Act provides for the establishment by order of NHS Trusts. Repeal of that section is provided for by section 179(2) of the 2012 Act, but no date has been appointed for section 179(2) to come into force.

(16)

See Chapter 5 of Part 2 of the 2006 Act. NHS foundation trusts are public benefit corporations authorised by Monitor under that Chapter. Relevant amendments to Chapter 5 were made by sections 111(11), 150(5), 151(9), 156(5), 159(1) to (3), (5) to (7), 160(1), (2) and (3), 161(1), 178(5) of and paragraphs 8, 9(1) and 10(1) of Schedule 13 to the Health and Social Care Act 2012 (c. 7) (“the 2012 Act”), by section 95 of and paragraph 83 of Part 3 of Schedule 5 to the Health and Social Care Act 2008 (c. 14), and by section 241 of and Part 18 of Schedule 18 to the Local Government and Public Involvement in Health Act 2007 (c. 28). Further amendments to the 2006 Act repealing certain relevant provisions in Chapter 5 of Part 2 thereof were made by sections 159(4), 180(1) to (4) of and Schedule 13, paragraphs 8, 9 and 10 of the 2012 Act but no date has been appointed for their commencement.

(17)

Monitor is the body corporate previously known as the Independent Regulator of NHS Foundation Trusts, which was first established by section 2 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43). That body’s name was changed to Monitor, and its existence continued, by section 61 of the 2012 Act.

(18)

2009 c. 20. As amended by section 7 of the Cities and Local Government Devolution Act 2016 (c. 1) (“the 2016 Act”), sections 105A and 105B provide, subject to certain tests and limitations, and with certain exceptions, including those set out in section 18 of the 2016 Act in relation to the health service, for orders to be made conferring functions of public authorities upon combined authorities.

(19)

2016 c. 1. Sections 16 and 17 provide, subject to certain tests and limitations, and with certain exceptions, including those set out in section 18 of the 2016 Act, for regulations to be made conferring functions of public authorities on local authorities.

(20)

Section 13Z was inserted by section 23(1) of the 2012 Act, and sections 13ZA and 13ZB were inserted by section 19 of and Schedule 4 to the 2016 Act. These three provisions permit the NHS Commissioning Board to make arrangements for the exercise of its functions with certain bodies which potentially may include local authorities and combined authorities. Section 14Z3A was inserted by section 19 of and Schedule 4 to the 2016 Act and permits clinical commissioning groups to make arrangements for their functions to be exercised jointly by clinical commissioning groups and a combined authority. Section 75 of the NHS Act was also amended by section 19 of and Schedule 4 to the 2016 Act and provides for regulations to be made permitting partnership arrangements to be made between prescribed health service bodies and prescribed local government bodies which in certain circumstances may include combined authorities.

(21)

The Care Quality Commission was established by section 1 of the Health and Social Care Act 2008 (c. 14).

(22)

Health Education England was established by section 96 of the Care Act 2014 (c. 23).

(23)

The Health Research Authority was established by section 109 of the Care Act 2014.

(24)

The Health and Social Care Information Centre was established by section 252 of the 2012 Act.

(25)

The Human Fertilisation and Embryology Authority was established by section 5 of the Human Fertilisation and Embryology Act 1990 (c. 37).

(26)

The Human Tissue Authority was established by section 13 of the Human Tissue Act 2004 (c. 30).

(27)

The National Institute for Health and Care Excellence was established by section 232 of the 2012 Act.