Session 2010 - 11
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Health and Social Care Bill


Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 1 — Monitor

75

 

(a)   

by promoting competition where appropriate, and

(b)   

through regulation where necessary.

(2)   

In carrying out its main duty, Monitor must have regard to the likely future

demand for health care services.

(3)   

Monitor must, in exercising its functions, promote the economic, efficient and

5

effective provision of health care services for the purposes of the NHS.

(4)   

Monitor must exercise its functions in a manner consistent with the

performance by the Secretary of State of the duty under section 1(1) of the

National Health Service Act 2006 (promotion of comprehensive health service).

(5)   

Nothing in this section requires Monitor to do anything in relation to the

10

supply to persons who provide health care services of goods that are to be

provided as part of those services.

(6)   

“Health care” means all forms of health care provided for individuals, whether

relating to physical or mental health, with a reference in this Part to health care

services being read accordingly; and for the purposes of this Part it does not

15

matter if a health care service is also an adult social care service (as to which,

see section 57).

(7)   

“The NHS” means the comprehensive health service continued under section

1(1) of the National Health Service Act 2006, except the part of it that is

provided in pursuance of the public health functions (within the meaning of

20

that Act) of the Secretary of State or local authorities.

(8)   

A reference in this Part to the provision of health care services for the purposes

of the NHS is a reference to their provision for those purposes in accordance

with that Act.

57      

Power to give Monitor functions relating to adult social care services

25

(1)   

Regulations may provide for specified functions of Monitor also to be

exercisable in relation to adult social care services.

(2)   

The regulations may amend this Part.

(3)   

“Adult social care”—

(a)   

includes all forms of personal care and other practical assistance

30

provided for individuals who by reason of age, illness, disability,

pregnancy, childbirth, dependence on alcohol or drugs, or any other

similar circumstances, are in need of such care or other assistance, but

(b)   

does not include anything provided by an establishment or agency for

which Her Majesty’s Chief Inspector of Education, Children’s Services

35

and Skills is the registration authority under section 5 of the Care

Standards Act 2000.

58      

Matters to have regard to in exercise of functions

In exercising its functions, Monitor must have regard to—

(a)   

the need to maintain the safety of people who use health care services,

40

(b)   

the desirability of securing continuous improvement in the quality of

health care services for the purposes of the NHS,

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 1 — Monitor

76

 

(c)   

the desirability of securing continuous improvement in the efficiency

with which health care services are provided for the purposes of the

NHS,

(d)   

the need for commissioners of health care services for the purposes of

the NHS to ensure that the provision of access to the services for those

5

purposes operates fairly,

(e)   

the need for commissioners of health care services for the purposes of

the NHS to ensure that people who require health care services for

those purposes are provided with access to them,

(f)   

the need for commissioners of health care services for the purposes of

10

the NHS to make the best use of resources when doing so,

(g)   

the desirability of promoting investment by providers of health care

services for the purposes of the NHS in the provision of health care

services for those purposes,

(h)   

the need to promote research into matters relevant to the NHS by

15

persons who provide health care services for the purposes of the NHS,

(i)   

the need for high standards in the education and training of health care

professionals who provide health care services for the purposes of the

NHS,

(j)   

the manner in which the Secretary of State performs the duty under

20

section 1A(1) of the National Health Service Act 2006 (improvement in

quality of services),

(k)   

the manner in which the National Health Service Commissioning

Board performs the duties under section 1D(3) of that Act

(commissioning of services), and

25

(l)   

the manner in which the National Health Service Commissioning

Board performs the duty under section 13D(1) of that Act

(improvement in quality of services).

59      

Conflicts between functions

(1)   

In a case where Monitor considers that any of its general duties conflict with

30

each other, it must secure that the conflict is resolved in the manner it considers

best.

(2)   

Monitor must act so as to secure that there is not, and could not reasonably be

regarded as being, a conflict between—

(a)   

its exercise of any of its functions under Chapter 5 of Part 2 of the

35

National Health Service Act 2006 (regulation of NHS foundation trusts)

or under sections 112 and 113 of this Act (designation of NHS

foundation trusts in transitional period) or under paragraph 17 of

Schedule 8 to this Act (accounts of NHS foundation trusts), and

(b)   

its exercise of any of its other functions.

40

(3)   

Monitor must ignore the functions it has under sections 112 and 113 when

exercising—

(a)   

its functions under Chapter 2 (competition);

(b)   

such of its functions under Chapter 4 (licensing) as relate to securing

the continued provision of designated services;

45

(c)   

its functions under Chapter 5 (pricing).

(4)   

If Monitor secures the resolution of a conflict between its general duties in a

case that comes within subsection (5), or that Monitor considers is otherwise of

unusual importance, it must publish a statement setting out—

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 1 — Monitor

77

 

(a)   

the nature of the conflict,

(b)   

the manner in which it decided to resolve it, and

(c)   

its reasons for deciding to resolve it in that manner.

(5)   

A case comes within this subsection if it involves—

(a)   

a matter likely to have a significant impact on persons who provide

5

health care services for the purposes of the NHS;

(b)   

a matter likely to have a significant impact on people who use health

care services provided for the purposes of the NHS;

(c)   

a matter likely to have a significant impact on the general public in

England (or in a particular part of England);

10

(d)   

a major change in the activities Monitor carries on;

(e)   

a major change in the standard conditions of licences under Chapter 4

(see section 98).

(6)   

Where Monitor is required to publish a statement under subsection (4), it must

do so as soon as reasonably practicable after making its decision.

15

(7)   

The duty under subsection (4) does not apply in so far as Monitor is subject to

an obligation not to publish a matter that needs to be included in the statement.

(8)   

Every annual report of Monitor must include—

(a)   

a statement of the steps it has taken in the financial year to which the

report relates to comply with the duty under subsection (2), and

20

(b)   

a summary of the manner in which, in that financial year, Monitor has

secured the resolution of conflicts between its general duties arising in

cases of the kind referred to in subsection (5).

(9)   

Monitor’s general duties for the purposes of this section are its duties under

sections 56 and 58.

25

60      

Duty to review regulatory burdens

(1)   

Monitor must keep the exercise of its functions under review and secure that

in exercising its functions it does not—

(a)   

impose burdens which it considers to be unnecessary, or

(b)   

maintain burdens which it considers to have become unnecessary.

30

(2)   

In keeping the exercise of its functions under review, Monitor must have

regard to such principles as appear to it to represent best regulatory practice.

(3)   

Subsection (1) does not require the removal of a burden which has become

unnecessary where its removal would, having regard to all the circumstances,

be impractical or disproportionate.

35

(4)   

Monitor must from time to time publish a statement setting out—

(a)   

what it proposes to do pursuant to subsection (1) in the period to which

the statement relates,

(b)   

what it has done pursuant to that subsection since publishing the

previous statement, and

40

(c)   

where a burden relating to the exercise of the function which has

become unnecessary is maintained pursuant to subsection (3), the

reasons why removal of the burden would, having regard to all the

circumstances, be impractical or disproportionate.

(5)   

The first statement—

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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 1 — Monitor

78

 

(a)   

must be published as soon as practicable after the commencement of

this section, and

(b)   

must relate to the period of 12 months beginning with the date of

publication.

(6)   

A subsequent statement—

5

(a)   

must be published during the period to which the previous statement

related or as soon as reasonably practicable after that period, and

(b)   

must relate to the period of 12 months beginning with the end of the

previous period.

(7)   

Monitor must, in exercising its functions, have regard to the statement that is

10

in force at the time in question.

(8)   

Monitor may revise a statement before or during the period to which it relates;

and, if it does so, it must publish the revision as soon as reasonably practicable.

61      

Duty to carry out impact assessments

(1)   

This section applies where Monitor is proposing to do something that it

15

considers would—

(a)   

be likely to have a significant impact on persons who provide health

care services for the purposes of the NHS;

(b)   

be likely to have a significant impact on people who use health care

services provided for the purposes of the NHS;

20

(c)   

be likely to have a significant impact on the general public in England

(or in a particular part of England);

(d)   

be likely to involve a major change in the activities Monitor carries on;

(e)   

be likely to involve a major change in the standard conditions of

licences under Chapter 4 (see section 98).

25

(2)   

But this section does not apply to—

(a)   

the carrying out by Monitor of an analysis of how markets involving

the provision of health care services are operating, or

(b)   

the exercise of functions under or by virtue of Chapter 2.

(3)   

Nor does this section apply if it appears to Monitor that the urgency of the

30

matter makes compliance with this section impracticable or inappropriate.

(4)   

Before implementing the proposal, Monitor must either—

(a)   

carry out and publish an assessment of the likely impact of

implementation, or

(b)   

publish a statement setting out its reasons for concluding that it does

35

not need to carry out an assessment under paragraph (a).

(5)   

The assessment must set out Monitor’s explanation of how the discharge of its

general duties (within the meaning of section 59)—

(a)   

would be secured by implementation of the proposal, but

(b)   

would not be secured by the exercise of functions that Monitor has by

40

virtue of section 64 or 65.

(6)   

The assessment may take such form, and relate to such matters, as Monitor

may determine; and in determining the matters to which the assessment is to

relate, Monitor must have regard to such general guidance on carrying out

impact assessments as it considers appropriate.

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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 1 — Monitor

79

 

(7)   

The assessment must specify the consultation period within which

representations with respect to the proposal may be made to Monitor; and for

that purpose the consultation period must not be less than 28 days beginning

with the day after that on which the assessment is published under subsection

(4).

5

(8)   

Monitor may not implement the proposal unless the consultation period has

ended.

(9)   

Where Monitor is required (apart from this section) to consult about, or afford

a person an opportunity to make representations about, a proposal that comes

within subsection (1), the requirements of this section—

10

(a)   

are in addition to the other requirement, but

(b)   

may be met contemporaneously with it.

(10)   

Every annual report of Monitor must set out—

(a)   

a list of the assessments carried out under this section during the

financial year to which the report relates, and

15

(b)   

a summary of the decisions taken during that year in relation to

proposals to which assessments carried out during that year or a

previous financial year relate.

62      

Information

(1)   

Information obtained by, or documents, records or other items produced to,

20

Monitor in connection with any of its functions may be used by Monitor in

connection with any of its other functions.

(2)   

For the purposes of exercising a function under this Part, the Secretary of State

may request Monitor to provide the Secretary of State with such information

as the Secretary of State may specify.

25

(3)   

Monitor must comply with a request under subsection (2).

63      

Failure to perform functions

(1)   

This section applies if the Secretary of State considers that Monitor is failing, or

has failed, to perform a function and that the failure is significant.

(2)   

The Secretary of State may direct Monitor to perform such of those functions,

30

and in such manner and within such period, as the direction specifies.

(3)   

But the Secretary of State may not give a direction under subsection (2) in

relation to the performance of functions in a particular case.

(4)   

If Monitor fails to comply with a direction under subsection (2), the Secretary

of State may—

35

(a)   

perform the functions to which the direction relates, or

(b)   

make arrangements for some other person to perform them on the

Secretary of State’s behalf.

(5)   

Where the Secretary of State exercises a power under subsection (2) or (4), the

Secretary of State must publish the reasons for doing so.

40

(6)   

Reference in subsection (1) to failure to perform a function includes a reference

to failure to perform it properly.

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition

80

 

Chapter 2

Competition

64      

Functions under the Competition Act 1998

(1)   

The functions referred to in subsection (2) are concurrent functions of Monitor

and the Office of Fair Trading.

5

(2)   

The functions are those that the Office of Fair Trading has under Part 1 of the

Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51) so

far as relating to any of the following which concern the provision of health

care services in England—

(a)   

agreements, decisions or concerted practices of the kind mentioned in

10

section 2(1) of that Act,

(b)   

conduct of the kind mentioned in section 18(1) of that Act,

(c)   

agreements, decisions or concerted practices of the kind mentioned in

Article 101 of the Treaty on the Functioning of the European Union,

(d)   

conduct which amounts to abuse of the kind mentioned in Article 102

15

of that Treaty.

(3)   

So far as necessary for the purposes of subsections (1) and (2), references in Part

1 of the Competition Act 1998 to the Office of Fair Trading are to be read as

including references to Monitor (except in sections 31D(1) to (6), 38(1) to (6), 51,

52(6) and (8) and 54).

20

65      

Functions under Part 4 of the Enterprise Act 2002

(1)   

The functions referred to in subsection (2) are concurrent functions of Monitor

and the Office of Fair Trading.

(2)   

The functions are those that the Office of Fair Trading has under Part 4 of the

Enterprise Act 2002 (market investigations), other than sections 166 and 171, so

25

far as relating to activities which concern the provision of health care services

in England.

(3)   

So far as necessary for the purposes of subsections (1) and (2), references in Part

4 of the Enterprise Act 2002 to the Office of Fair Trading (including references

in provisions of that Act applied by that Part) are to be read as including

30

references to Monitor, except in sections 166 and 171.

(4)   

Before the Office of Fair Trading or Monitor first exercises functions which are

exercisable concurrently by virtue of this section, it must consult the other.

(5)   

Neither the Office of Fair Trading nor Monitor may exercise in relation to any

matter functions which are exercisable concurrently by virtue of this section if

35

functions which are so exercisable have been exercised in relation to that

matter by the other.

(6)   

Section 117 of the Enterprise Act 2002 (offences of supplying false or

misleading information) as applied by section 180 of that Act is to have effect

so far as relating to functions exercisable by Monitor by virtue of this section as

40

if the references in section 117(1)(a) and (2) to the Office of Fair Trading

included references to Monitor.

 
 

 
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Revised 1 April 2011