Health and Social Care Bill (HC Bill 221)

Health and Social Care BillPage 250

(g) an NHS trust established under section 18 of the National
Health Service (Wales) Act 2006,

(h) the National Institute for Health and Care Excellence,

(i) the Health and Social Care Information Centre,

(j) 5a Special Health Authority,

(k) the Care Quality Commission, and

(l) such other persons as the appropriate authority may specify in
a direction given for the purposes of this section.

(4B) For the purposes of subsection (4A)(l), the appropriate authority is—

(a) 10in relation to a direction to be given for purposes relating only
to Wales, the Welsh Ministers, and

(b) in any other case, the Secretary of State.

(3) After subsection (5) insert—

(5A) A direction under subsection (4A)(l) must be given by an instrument in
15writing.

(5B) Sections 272(7) and 273(1) of the National Health Service Act 2006 apply
in relation to the power of the Secretary of State to give a direction
under subsection (4A)(l) as they apply in relation to powers to give a
direction under that Act.

(5C) 20Sections 203(9) and 204(1) of the National Health Service (Wales) Act
2006 apply in relation to the power of the Welsh Ministers to give a
direction under subsection (4A)(l) as they apply in relation to powers to
give a direction under that Act.

(4) After subsection (6) insert—

(7) 25In subsection (4A)—

  • “commissioning consortium” and “Special Health Authority”
    have the same meaning as in the National Health Service Act
    2006;

  • “local authority” has the same meaning as in section 2B of that Act
    30of 2006.

Duties to co-operate

287 Monitor: duty to co-operate with Care Quality Commission

(1) Monitor must co-operate with the Care Quality Commission in the exercise of
their respective functions.

(2) 35In particular Monitor must—

(a) give the Commission any information Monitor has about the provision
of health care services which Monitor or the Commission considers
would assist the Commission in the exercise of its functions,

(b) make arrangements with the Commission to ensure that—

(i) 40a person applying both for a licence under Chapter 4 of Part 3
and to be registered under the Health and Social Care Act 2008
may do so by way of a single application form,

(ii) such a person is granted a licence under that Chapter and
registration under that Act by way of a single document, and

Health and Social Care BillPage 251

(c) seek to secure that the conditions included in a licence under that
Chapter in a case within paragraph (b) are consistent with any
conditions on the person’s registration under that Act.

(3) Without prejudice to subsection (2)(a) Monitor must, on request, provide the
5Commission with any material relevant to the exercise of Monitor’s functions
pursuant to section 68(2), so far as the material relates to the provision of health
care services.

(4) In subsection (2), references to registration under the Health and Social Care
Act 2008 are references to registration under Chapter 2 of Part 1 of that Act.

288 10Care Quality Commission: duty to co-operate with Monitor

(1) Section 70 of the Health and Social Care Act 2008 (co-operation between the
Commission and the Independent Regulator of NHS foundation trusts) is
amended as follows.

(2) For subsection (1) substitute—

(1) 15The Commission must co-operate with Monitor in the exercise of their
respective functions.

(3) For subsection (2) substitute—

(2) In particular the Commission must—

(a) give Monitor any information the Commission has about the
20provision of health care which the Commission or Monitor
considers would assist Monitor in the exercise of its functions,
and

(b) make arrangements with Monitor to ensure that—

(i) a person applying to be both registered under Chapter 2
25and for a licence under the Health and Social Care Act
2011 may do so by way of a single application form, and

(ii) such a person is granted a registration under Chapter 2
and a licence under that Act by way of a single
document, and

(c) 30seek to secure that the conditions on a registration under
Chapter 2 in a case within paragraph (b) are consistent with the
conditions included in the person’s licence under that Act.

(4) In subsection (3)—

(a) for “Independent Regulator” substitute “Monitor”, and

(b) 35for “an NHS foundation trust” substitute “a person who holds a licence
under the Health and Social Care Act 2011”.

(5) After that subsection insert—

(4) In this section, a reference to a licence under the Health and Social Care
Act 2011 is a reference to a licence under Chapter 4 of Part 3 of that Act.

(6) 40In the heading of that section, for “Independent Regulator of NHS Foundation
Trusts” substitute “Monitor”.

Health and Social Care BillPage 252

289 Other duties to co-operate

(1) Monitor and each relevant body must co-operate with each other in the
exercise of their respective functions.

(2) The Care Quality Commission and each relevant body must co-operate with
5each other in the exercise of their respective functions.

(3) The relevant bodies are—

(a) the National Health Service Commissioning Board,

(b) the National Institute for Health and Care Excellence,

(c) the Health and Social Care Information Centre, and

(d) 10Special Health Authorities which have functions that are exercisable in
relation to England.

(4) The Secretary of State may by order amend subsection (3) so as to add to the
list of relevant bodies a body that has functions relating to health.

(5) Where Monitor or the Care Quality Commission regulates an activity of a
15relevant body, the duty imposed by subsection (1) or (as the case may be)
subsection (2) does not apply to—

(a) the exercise by Monitor or by the Commission of its function of
regulating that activity;

(b) the exercise by the relevant body of any function in so far as it involves
20carrying on that activity.

(6) A reference in this section to regulating an activity includes a reference to—

(a) authorising the carrying on of the activity, imposing restrictions on the
carrying on of the activity, and exercising functions in relation to such
authorisations or restrictions;

(b) 25enforcing the performance of an obligation imposed (whether or not by
provision made by or under an enactment) with respect to the carrying
on of the activity;

(c) issuing guidance on the carrying on of the activity, the authorisation of
the activity, restrictions on the activity, or the performance of obligation
30imposed with respect to the carrying on of the activity.

(7) For the purposes of this section and section 290, the functions of a Special
Health Authority include such functions as it is directed to exercise under
section 7 of the National Health Service Act 2006 (directions by Secretary of
State).

(8) 35References in this section and section 290 to functions are references to
functions so far as exercisable in relation to England.

290 Breaches of duties to co-operate

(1) If the Secretary of State is of the opinion that bodies subject to a relevant co-
operation duty have breached or are breaching the duty, or are at significant
40risk of breaching the duty, the Secretary of State may give a written notice of
the Secretary of State’s opinion to each body.

(2) The relevant co-operation duties are—

(a) the duty under section 287 (co-operation by Monitor with the Care
Quality Commission),

(b) 45the duties under section 289(1) and (2),

Health and Social Care BillPage 253

(c) the duty under section 70 of the Health and Social Care Act 2008 (co-
operation by the Care Quality Commission with Monitor),

(d) any duties imposed by an enactment on relevant bodies to co-operate
with each other in the exercise of their respective functions.

(3) 5The Secretary of State must publish each notice given under subsection (1) in
such form as the Secretary of State considers appropriate.

(4) Subsection (5) applies if, having given a notice under subsection (1), the
Secretary of State is satisfied that—

(a) the bodies concerned have breached or are continuing to breach the
10duty or, the risk of a breach having materialised, are breaching the
duty, and

(b) the breach is having a detrimental effect on the performance of the
health service (or, where the effect of the breach on the performance of
the health service is both beneficial and detrimental, its overall effect is
15detrimental).

(5) The Secretary of State may by order prohibit each body from exercising
specified functions, or from exercising specified functions in a specified
manner, unless the other body concerned agrees in writing that the body may
do so.

(6) 20The power to make an order under subsection (5)—

(a) may be exercised so as to specify different functions in relation to each
body, but

(b) may not be exercised so as to prevent a body from complying with a
requirement imposed by or under an enactment or by a court or
25tribunal.

(7) In default of agreement as to the exercise of a function specified in an order
under subsection (5), a body may exercise the function in accordance with
provision determined by arbitration.

(8) An order under subsection (5) must specify the period for which a prohibition
30imposed by it has effect; and the period specified for that purpose may not
exceed one year beginning with the day on which the order comes into force.

(9) But if the Secretary of State is satisfied that the breach is continuing to have a
detrimental effect (or an effect that overall is detrimental) on the performance
of the health service, the Secretary of State may by order extend by one year the
35period for which the prohibition for the time being has effect.

(10) In this section, “the health service” means the comprehensive health service
continued under section 1(1) of the National Health Service Act 2006.

The Care Quality Commission

291 Requirement for Secretary of State to approve remuneration policy etc.

40In paragraph 5 of Schedule 1 to the Health and Social Care Act 2008 (employees
of the Care Quality Commission), at the end insert—

(5) Before making a determination as to remuneration, pensions,
allowances or gratuities for the purposes of sub-paragraph (3) or (4),
the Commission must obtain the approval of the Secretary of State to
45its policy on that matter.

Health and Social Care BillPage 254

292 Conduct of reviews etc. by Care Quality Commission

(1) Part 1 of the Health and Social Care Act 2008 (the Care Quality Commission) is
amended as follows.

(2) In section 48 (special reviews and investigations)—

(a) 5in subsection (1) after “may” insert “, with the approval of the Secretary
of State,”, and

(b) after subsection (1) insert—

(1A) The Commission may conduct an investigation under this
section without the approval of the Secretary of State where the
10Commission considers there to be a risk to the health, safety or
welfare of persons receiving health or social care.

(3) In section 54 (studies as to economy, efficiency etc.), in each of subsections (1)
and (3) after “may” insert “, with the approval of the Secretary of State,”.

(4) In section 57 (reviews of data, studies and research), in subsection (1) after
15“may” insert “, with the approval of the Secretary of State,”.

293 Failure to discharge functions

(1) In section 82 of the Health and Social Care Act 2008 (failure by Commission to
discharge functions), in subsection (1), at the end insert ,

and that the failure is significant.

(2) 20After subsection (2) of that section insert—

(2A) But the Secretary of State may not give a direction under subsection (1)
in relation to the performance of functions in a particular case.

(3) After subsection (3) of that section insert—

(4) Where the Secretary of State exercises a power under subsection (1) or
25(3), the Secretary of State must publish the reasons for doing so.

(4) In section 161 of that Act (orders, regulations and directions: general
provisions), in subsection (3), before “any power of the Secretary of State to
give directions” insert “(subject to section 82(2A))”.

(5) In section 165 of that Act (directions), at the beginning of subsection (2) insert
30“Subject to subsection (3),”.

(6) After that subsection insert—

(3) A direction under section 82 must be given by regulations or by an
instrument in writing.

Arrangements with devolved authorities etc.

294 35Arrangements between the Board and Northern Ireland Ministers

(1) The National Health Service Commissioning Board may make arrangements
with a Northern Ireland Minister for the Board to commission services for the
purposes of the Northern Ireland health service.

Health and Social Care BillPage 255

(2) Arrangements under this section may be on such terms and conditions as may
be agreed between the parties to the arrangements.

(3) Those terms and conditions may include provision with respect to the making
of payments to the National Health Service Commissioning Board in respect of
5the cost to it of giving effect to the arrangements.

(4) In this section—

  • “commission” means arrange for the provision of,

  • “Northern Ireland health service” means any of the health services under
    any enactment which extends to Northern Ireland and which
    10corresponds to section 1(1) of the National Health Service Act 2006
    (and, for that purpose, “enactment” includes subordinate legislation
    (within the meaning of the Interpretation Act 1978) and Northern
    Ireland legislation), and

  • “Northern Ireland Minister” includes the First Minister, the deputy First
    15Minister and a Northern Ireland department.

295 Arrangements between the Board and Scottish Ministers etc.

(1) The National Health Service Commissioning Board may make arrangements
with the Scottish Ministers or a Scottish health body for the Board to
commission services for the purposes of the Scottish health service.

(2) 20Arrangements under this section may be on such terms and conditions as may
be agreed between the parties to the arrangements.

(3) Those terms and conditions may include provision with respect to the making
of payments to the National Health Service Commissioning Board in respect of
the cost to it of giving effect to the arrangements.

(4) 25In this section—

  • “commission” means arrange for the provision of, and

  • “Scottish health body” means—

    (a)

    a Health Board or Special Health Board constituted under
    section 2 of the National Health Service (Scotland) Act 1978, and

    (b)

    30the Common Services Agency for the Scottish Health Service
    constituted by section 10 of that Act.

296 Relationships between the health services

Schedule 22 (which amends enactments relating to the relationships between
the health services in the United Kingdom) has effect.

297 35Advice or assistance to public authorities in the Isle of Man or Channel
Islands

(1) The National Health Service Commissioning Board or a commissioning
consortium may provide advice or assistance to any public authority in the Isle
of Man or Channel Islands.

(2) 40Advice or assistance under subsection (1) may be provided on such terms,
including terms as to payment, as the Board or (as the case may be) the
consortium considers appropriate.

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Supervised community treatment

298 Certificate of consent of community patients to treatment

(1) Part 4A of the Mental Health Act 1983 (treatment of community patients not
recalled to hospital) is amended as follows.

(2) 5In section 64C (treatment of adult community patients), after subsection (4)
insert—

(4A) Where there is authority to give treatment by virtue of subsection (2)(a),
the certificate requirement is also met in respect of the treatment if the
approved clinician in charge of the treatment has certified in writing
10that the patient has capacity to consent to the treatment and has
consented to it.

(4B) But, if the patient has not attained the age of 18, subsection (4A) does
not apply to section 58A type treatment.

(3) In section 64E (treatment of child community patients), in subsection (7)—

(a) 15for “(3) to (9)” substitute “(3) to (4A) and (5) to (9)”, and

(b) at the end insert “; and for the purpose of this subsection, subsection
(4A) of section 64C above has effect as if—

(a) the references to treatment were references only to
section 58 type treatment,

(b) 20the reference to subsection (2)(a) of section 64C were a
reference to subsection (6)(a) of this section, and

(c) the reference to capacity to consent were a reference to
competence to consent.

(4) After section 64F insert—

64FA 25Withdrawal of consent

(1) Where the consent of a patient to any treatment has been given as
mentioned in section 64C(2)(a) above for the purposes of section 64B or
64E above, the patient may at any time before the completion of the
treatment withdraw his consent, and those sections shall then apply as
30if the remainder of the treatment were a separate form of treatment.

(2) Subsection (3) below applies where—

(a) the consent of a patient to any treatment has been given as
mentioned in section 64C(2)(a) above for the purposes of section
64B or 64E above; but

(b) 35before the completion of the treatment, the patient loses
capacity or (as the case may be) competence to consent to the
treatment.

(3) The patient shall be treated as having withdrawn his consent and
section 64B or (as the case may be) section 64E above shall then apply
40as if the remainder of the treatment were a separate form of treatment.

(4) Without prejudice to the application of subsections (1) to (3) above to
any treatment given under the plan of treatment to which a patient has
consented, a patient who has consented to such a plan may at any time
withdraw his consent to further treatment, or to further treatment of
45any description, under the plan.

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(5) This section shall not preclude the continuation of any treatment, or of
treatment under any plan, pending compliance with section 58, 58A,
64B or 64E above if the approved clinician in charge of the treatment
considers that the discontinuance of the treatment, or of treatment
5under the plan, would cause serious suffering to the patient.

(5) In section 64H (certificates: supplementary provision)—

(a) in subsection (2), at the end insert “; and the regulations may make
different provision for the different descriptions of Part 4A certificate”,
and

(b) 10in subsections (3), (4) and (5), after “Part 4A certificate” insert “that falls
within section 64C(4) above”.

(6) In section 17B of the Mental Health Act 1983 (conditions of community
treatment order), in subsection (3)(b), after “Part 4A of this Act” insert “that
falls within section 64C(4) below”.

(7) 15In section 61 of that Act (review of treatment), in subsection (1), after “that
section)” insert “that falls within section 64C(4) below”.

(8) In section 62A of that Act (treatment on recall of community patient or
revocation of order), in subsection (5), after “applies” insert “and the Part 4A
certificate falls within section 64C(4) below”.

(9) 20In subsection (6) of that section, after “58 or 58A above” insert “or 64B or 64E
below”.

(10) After that subsection insert—

(6A) In a case where this section applies and the certificate requirement is no
longer met for the purposes of section 64C(4A) below, the continuation
25of any treatment, or of treatment under any plan, pending compliance
with section 58 or 58A above or 64B or 64E below shall not be precluded
if the approved clinician in charge of the treatment considers that the
discontinuance of the treatment, or of treatment under the plan, would
cause serious suffering to the patient.

30Transfer schemes

299 Transfer schemes

(1) The Secretary of State may make a property transfer scheme or a staff transfer
scheme in connection with—

(a) the establishment or abolition of a body by this Act, or

(b) 35the modification of the functions of a body or other person by or under
this Act.

(2) A property transfer scheme is a scheme for the transfer from a body or other
person mentioned in the first column of the Table in Schedule 23 of any
property, rights or liabilities, other than rights or liabilities under or in
40connection with a contract of employment, to a body or other person
mentioned in the corresponding entry in the second column.

(3) A staff transfer scheme is a scheme for the transfer from a body or other person
mentioned in the first column of the Table in Schedule 24 of any rights or
liabilities under or in connection with a contract of employment to a body or
45other person mentioned in the corresponding entry in the second column.

Health and Social Care BillPage 258

(4) The Secretary of State may direct the Board or a qualifying company to exercise
the functions of the Secretary of State in relation to the making of a property
transfer scheme or a staff transfer scheme in connection with the abolition of—

(a) one or more Primary Care Trusts specified in the direction, or

(b) 5one or more Strategic Health Authorities so specified.

(5) Where the Secretary of State gives a direction under subsection (4), the
Secretary of State may give directions to the Board or (as the case may be) the
company about its exercise of the functions.

(6) For the purposes of this section and section 300—

(a) 10an individual who holds employment in the civil service is to be treated
as employed by virtue of a contract of employment, and

(b) the terms of the individual’s employment in the civil service are to be
regarded as constituting the terms of the contract of employment.

(7) In this section and section 300 references to the transfer of property include
15references to the grant of a lease.

(8) In this section and Schedules 23 and 24, “qualifying company” means a
company which is formed under section 223 of the National Health Service Act
2006 and wholly or partly owned by the Secretary of State.

(9) In section 300 and Schedules 23 and 24—

  • 20“local authority” means—

    (a)

    a county council in England;

    (b)

    a district council in England, other than a council for a district
    in a county for which there is a county council;

    (c)

    a London borough council;

    (d)

    25the Council of the Isles of Scilly;

    (e)

    the Common Council of the City of London;

  • “public authority” means any body or other person which has functions
    conferred by or under an Act or by royal charter.

300 Transfer schemes: supplemental

(1) 30The things that may be transferred under a property transfer scheme or a staff
transfer scheme include—

(a) property, rights and liabilities that could not otherwise be transferred;

(b) property acquired, and rights and liabilities arising, after the making of
the scheme;

(c) 35criminal liabilities but only where the transfer is to a person mentioned
in subsection (2).

(2) Those persons are—

(a) the National Health Service Commissioning Board;

(b) a commissioning consortium;

(c) 40a local authority;

(d) the Care Quality Commission;

(e) Monitor;

(f) the National Institute for Health and Care Excellence;

(g) the Health and Social Care Information Centre;

(h) 45the Health and Care Professions Council;

Health and Social Care BillPage 259

(i) a public authority other than a Minister of the Crown.

(3) A property transfer scheme or a staff transfer scheme may make
supplementary, incidental, transitional and consequential provision and may
in particular—

(a) 5create rights, or impose liabilities, in relation to property or rights
transferred;

(b) make provision about the continuing effect of things done by the
transferor in respect of anything transferred;

(c) make provision about the continuation of things (including legal
10proceedings) in the process of being done by, on behalf of or in relation
to the transferor in respect of anything transferred;

(d) make provision for references to the transferor in an instrument or
other document in respect of anything transferred to be treated as
references to the transferee.

(4) 15A property transfer scheme may make provision for the shared ownership or
use of property.

(5) A staff transfer scheme may make provision which is the same or similar to the
TUPE regulations.

(6) A property transfer scheme or a staff transfer scheme may provide—

(a) 20for the scheme to be modified by agreement after it comes into effect,
and

(b) for any such modifications to have effect from the date when the
original scheme comes into effect.

(7) Where a Primary Care Trust, a Strategic Health Authority or a Special Health
25Authority is abolished by this Act, the Secretary of State must exercise the
powers conferred by section 299 and this section so as to secure that all the
body’s liabilities (other than criminal liabilities) are dealt with.

(8) In this section, “TUPE regulations” means the Transfer of Undertakings
(Protection of Employment) Regulations 2006 (SI 2006/246SI 2006/246).

30Part 12 Final provisions

301 Power to make consequential provision

(1) The Secretary of State may by order make provision in consequence of this Act.

(2) An order under this section may, in particular—

(a) 35amend, repeal, revoke or otherwise modify any enactment;

(b) include transitional, transitory or saving provision in connection with
the commencement of provision made by the order.

(3) Transitory provision by virtue of subsection (2)(b) may, in particular, modify
the application of provision made by the order pending the commencement
40of—

(a) another provision of the order,

(b) a provision of this Act,

(c) any other enactment.