House of Lords - Explanatory Note
Health And Social Care Bill - continued          House of Lords

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Clause 58: Preserved rights: disclosure of information

284. This clause is about identifying and locating people with preserved rights by using records held by the Department of Social Security.

285. Clause 58 allows the disclosure to local authorities of relevant information held by the Secretary of State for Social Security about preserved rights recipients to local authorities or to any person providing services to, or authorised to exercise functions of, such authorities. Subsection (1) specifies the persons this clause applies to. Subsections (2) to (4) specify the type of information which may be supplied and for what purposes it may be used or disclosed. Subsection (5) provides that the restrictions imposed on the Secretary of State for Social Security relating to the unauthorised disclosure of information held by him (see section 123 of the Social Security Administration Act 1992) will apply to local authorities who receive information as well as to the authorities' officers and employees. Subsection (6) defines certain terms used in the clause.

Clause 59: Preserved rights: alignment of social security benefits

286. This clause provides for the termination of higher rates of income support and jobseekers allowance. Clause 59 requires the Secretary of State to exercise his powers under the Social Security Contributions and Benefits Act 1992 and the Jobseeker's Act 1995 so as to secure that the provisions relating to higher rates of income support or jobseeker's allowance payable to or in respect of persons with preserved rights cease to have effect from the appointed day.

Measures to increase availability of Part 3 accommodation

Clause 60: Disregarding of resources when determining need for residential accommodation

287. Currently local authorities can only support people in residential accommodation who are in need of care and attention which is 'not otherwise available to them'. Local authorities may refuse to support a person who has capital in excess of £16,000, (the current upper capital limit) and the capacity to make their own arrangements on the grounds that they have care and attention otherwise available to them (the implication is that the £16,000+ capital could be used to meet care costs).

288. Clause 60 enables the Secretary of State to specify in regulations certain capital that is to be ignored by local authorities in determining whether care and attention is 'otherwise available'.

289. This clause will allow regulations to be made in the future which break the link with the capital limit when determining whether care and attention is otherwise available, so that more people are able to take up the offer of a charge against their home to pay for their accommodation. Charges against homes are dealt with in clause 62.

Clause 61: Funding by resident etc. of more expensive accommodation

290. Currently, people provided with accommodation by local authorities cannot themselves pay the extra required for them to be provided with more expensive accommodation than the local authority will pay for. In other words, people cannot use any assets ignored by the means test to fund a care placement whose cost is greater than the level the local council would usually pay. This is because they will have been assessed for a fair contribution so should not have extra resources to utilise in this way. A third party (for example, a relative) can make up the difference if a more expensive home is chosen.

291. Under the new arrangements and in particular as a result of the deferred payments scheme (see clause 62) , it is expected that greater numbers of people will be supported by local authorities and that many of these people will have some additional resources which could be used to fund more expensive accommodation.

292. Clause 61 allows for the making of regulations to enable both residents and third parties to make additional payments so that the resident can enter more expensive accommodation than that which the authority would normally pay for in respect of a person with the same needs. Subsection (2) defines additional payments.

Clause 62: Power for local authorities to take charges on land instead of contributions

293. The effect of this clause is to make it possible for people going into care to defer selling their homes in order to pay for their care. In effect the local authority will make a loan to the resident and recover the money either from the estate when the person dies or from the person where he decides to make a full repayment during his lifetime.

294. Subsection (1) enables local authorities to enter into deferred payments agreements. Subsection (2) allows directions to be made setting out the circumstances in which an authority must enter into these arrangements. Subsection (3) sets out the nature of the deferred payment arrangement. In essence it is an agreement whereby during a certain period of time (the exempt period) a resident will not be required to make the payments, or the whole of the payments, he would otherwise have to make under the means testing regime. Instead the resident will grant the authority a charge over land in respect of such payments. Subsection (4) defines the exempt period. Subsection (5) allows the local authority to determine the conditions of the arrangement subject to any directions given and provides that the arrangement must allow the resident to terminate the agreement at any time by giving notice and paying the full amount owing.

295. Subsection (6) provides that interest is not to be charged during the exempt period but that local authorities may charge interest after that period at a reasonable rate or at such a rate as is set out in directions.

296. Subsection (7) enables regulations to define how much of a resident's contributions in respect of his accommodation is to be subject to a deferred payment agreement. It also ensures that additional payments under clause 61 (that is, payments to cover the cost of more expensive accommodation) are regarded as costs of the Part 3 accommodation for the purposes of this section.

297. Subsection (8) provides that any directions given under the clause are to be given to local authorities generally.

Clause 63: Cross-Border Placements

298. The existing legislation does not allow local authorities in England and Wales to make and pay for residential care placements in Scotland, Northern Ireland, the Channel Islands or the Isle of Man. This clause will enable regulations to be made to allow this. It is intended to allow people needing residential care to have care closer to their families where their families have moved away.

299. Subsection (1) allows regulations to be made authorising local authorities to make arrangements for a person to be provided with residential accommodation in Scotland, Northern Ireland, the Channel Islands or the Isle of Man.

300. Subsection (2) provides that the regulations may, in particular, make provision specifying conditions to be satisfied before a local authority may make such arrangements, and may make provision applying the provisions of the 1948 Act with or without modifications.

Direct payments

301. Direct payments are cash payments given to persons entitled to social services in lieu of services that would otherwise been arranged for them by social services departments. Social services clients are then expected to arrange their own care.

302. Clauses 64 and 65 enable regulations to be made in connection with making direct payments in respect of services under section 47 of the 1990 Act, section 2(1) of the Carers and Disabled Children Act 2000 and in respect of children. Clause 64 deals with direct payments in respect of adults. Clause 65 deals with direct payments in respect of children.

Clause 64: Direct Payments

303. Clause 64 deals with direct payments in respect of adults. Under the current system local authorities are permitted but not required to offer direct payments to people who meet the eligibility criteria. Subsection (1) allows regulations to be made to make provision for and in connection with requiring or authorising a local authority to make direct payments to an individual who fulfils the requirements of the scheme and agrees to be part of it.

304. Subsection (2) specifies the persons to whom direct payments may be made. These are: a person who the local authority has decided under the 1948 Act needs a particular community care service; and a person for whom the local authority has decided under the Carers and Disabled Children Act 2000 to provide a service under that Act

305. Subsection (3) gives particular instances of what the regulations may provide. In particular, regulations may specify the situations in which a local authority is not required or authorised to make a direct payments. It does, however, allow for flexibility: regulations could provide that an individual who has previously made mistakes or misspent may still be able to get a direct payments.

306. It also enables regulations to be made that concern: making direct payments either as gross or net payments; determining the payee's means and any contribution they will make; conditions that the local authority may impose in respect of the direct payment; circumstances when the payments may be terminated or require repayment;; and authorising direct payments to be paid to a third party on behalf of the payee.

307. The subsection also enables regulations to be made displacing, to such extent as may be prescribed, the functions and obligations of the local authority with respect to the provision of the service for which the direct payment is made. This will enable the effect of section 2 of the Community Care (Direct Payments) Act 1996 to be reproduced.

308. Subsection (4) defines gross payments as payments which are made at a rate at which the local authority estimates is equivalent to the reasonable cost of securing the service concerned. It also specifies that they may be made subject to the condition that the recipient will reimburse the local authority in respect of part of that cost.

309. Subsection (5) defines a net payment as a payment which is made on the basis that the recipient will himself pay a contribution direct to the person providing the service. Thus the payment will be made at a rate below the equivalent to the reasonable cost of securing the provision of the services concerned in order to reflect the contribution made by the recipient.

310. Subsection (6) requires regulations to ensure that no contribution may be sought for services which are provided under section 117 of the Mental Health Act 1983 (after care). This is because local authorities are not able to charge for after care services provided under that section, and therefore no financial contribution can be sought from the client.

311. Subsection (7) makes provision for regulations to limit the maximum period for which residential care may be purchased with a direct payment. It will be possible for direct payments to be used to purchase short term rehabilitation care.

312. Subsection (8) defines "prescribed" as specified in or determined in accordance with the regulations made under this section.

Clause 65: Direct payments in respect of children

313. Clause 65 deals with direct payments in respect of children. It substitutes a new section 17A in the Children Act 1989.

314. Within the revised section 17A of the Children Act 1989: Subsection (1) enables regulations to be made to make provision for and in connection with requiring or authorising a local authority to make a direct payment to an individual who fulfils the requirements of the scheme and agrees to be part of it.

315. Subsection (2) specifies the persons to whom a direct payment may be made.. These persons are: a person with parental responsibility for a disabled child; a disabled person with parental responsibility for a child; and a disabled 16 or 17 year old. It also specifies that the local authority must have decided for the purpose of section 17 of the Children Act 1989 that the needs of the child in question call for them to provide services.

316. Subsection (3) provides that clause 64(3) to (5) and (7) of this Bill apply in relation to regulations under the revised section 17A.

317. Subsection (4) provides for regulations to be made to specify that direct payments to the categories of people that this subsection applies to are to be gross payments with no contribution being required from them (see subsection (5)).

318. Subsection (5) specifies the persons from whom a contribution may not be required. They are: a person with parental responsibility for a disabled child or a disabled person with parental responsibility for a child where the child is aged 16 or 17; or a person who is in receipt of income support, working families' tax credit or a disabled person's tax credit under Part 7 of the Social Security Contributions and Benefits Act 1992 or of an income-based jobseeker's allowance.

319. Subsection (6) defines "disabled" in relation to an adult by reference to the meaning given by section 17(11) of the Children Act 1989 in relation to a child. It also defines the meaning of "prescribed".

Clause 66: Interpretation of Part 4

320. Clause 66 defines the terms used throughout Part 4 (clauses 56 to 66).


Patient information

Clause 67: Control of patient information

321. Clause 67 has two main effects. Firstly subsections (1) and (2) provide powers to regulate the disclosure and processing of patient information, or information derived from such information for commercial purposes. This provides new protection for the use of patient information that runs contrary to the interests of the patient and the NHS.

322. And secondly subsections (3) to (9), provide for the Secretary of State to require the flow of patient information in prescribed circumstances. This will make it possible for patients to receive more information about their clinical care and make it possible for patient confidential information to be lawfully processed without informed consent to support prescribed activities.

323. Guidance issued by the General Medical Council in July 2000 highlighted potential legal difficulties with the use of patient information. The Government is developing a strategy to address these difficulties and to move to the consistent use of patient information with informed patient consent or of anonymised patient information. The powers in clause 67 will enable certain prescribed services to continue to use patient confidential information without consent. This is intended to safeguard essential services, such as cancer registries, in the transitional period as the NHS moves to informed consent and the technology to support anonymised data is put in place.

324. In recognition of the inherent difficulties associated with using confidential information the bill builds in a number of safeguards over the use of this power to protect the patients' interest. First the information can only be used for medical purposes where there is a benefit to patient care or public health and where there is no reasonably practicable alternative. The Secretary of State can then only lay regulations under the terms of this clause, following consultation with bodies representing the interests of those likely to be affected by the regulations. Finally any such regulations can only be made under the affirmative resolution procedure, requiring the consent of both Houses of Parliament.

325. The Department of Health is establishing an advisory group to work up the details of the process and standards to be applied to any use of the powers. The Advisory Group will consider the value and quality of the use of information and the reasons why consent cannot be sought for each possible use of the regulation making power and advise the Secretary of State of the merits of any application of these regulation making powers.

326. The Data Protection Act 1998 governs, in broad terms, the processing of information relating to living individuals. This clause does not amend that Act. In addition, regulations made under this clause will not be capable of amending that Act (see note on subsection (8) below). It follows that regulations made under this clause will make provision that will supplement the Data Protection Act 1998 and may provide additional and more specific restrictions on the use of information relating to patients.

327. Information provided in confidence by patients is also subject to common law requirements which being derived from case law are difficult to apply with certainty in particular circumstances, especially since there has been little case law relating to healthcare settings. Regulations made under this clause may place additional restrictions or obligations on those wishing to use patient information in prescribed circumstances. Regulations may also, subject to safeguards, require information to be disclosed by prescribed bodies for prescribed medical purposes when this is determined to be in the public interest or to support or in the interests of patient care. Regulations may provide that the processing of patient information under the regulations is lawful despite any common law obligation of confidence (see note on subsection (4) (c) below).

328. A detailed commentary on the subsections of clause 67 is set out below.

329. Subsection (1) allows for regulations to be made, following consultation, prohibiting or restricting the use of patient information. The power is restricted to prohibiting or restricting the processing of information for prescribed commercial purposes. For example regulations could be made which prohibit patient information being used for particular commercial purposes that are not in the interests of the NHS or patients.

330. Subsection (2) specifies some of the ways in which the power conferred by subsection (1) may be used.

331. Subsection (2)(a) provides that exceptions to any prohibition contained in regulations made under subsection (1) can be made where conditions are complied with or undertakings are given, for example conditions or undertakings relating to the purposes for which patient information may be used or to the level of its abstraction or aggregation.

332. Subsection (2)(b) provides that regulations may require or permit the inclusion in the terms and conditions of service of those engaged in the health service, and in the terms under which others participate in the provision of the health service under statutory or contractual arrangements, of provisions restricting the processing of patient information. For example, a provision could be made which would prohibit the disclosure of specified patient information by people with access to patient information if it was used for particular commercial purposes.

333. Subsection (2)(c) makes it possible to create a criminal offence when an individual does not act in accordance with the regulations. This is designed to protect the patient and the NHS by ensuring that where patient information is disclosed contrary to regulations, the body or individual in breach of the regulations is liable to a fine. Subsection (2)(c) also enables the introduction of other procedures to enforce the regulations.

334. Subsection (3) enables the Secretary of State, subject to limitations imposed by subsections (5) - (8), to make regulations requiring patient information to be processed for medical purposes (as defined in subsection (12)) and regulating such processing.

335. Subsection (4) specifies some of the ways in which the power conferred by subsection (3) may be used.

336. Subsection (4)(a) enables regulations to be made that require specified communications about patients to be disclosed to them by NHS bodies, in certain circumstances. Such regulations may only provide for these communications to be disclosed to those persons to whom they relate or principally relates or to a prescribed person on their behalf, for example a spouse. This is intended to support the NHS Plan commitment that clinicians will in the future be required to share information about patients with them. Guidance on this matter will follow.

337. Subsection (4)(b) enables regulations to be made which require the disclosure or other processing of specified patient information subject to conditions or undertakings. This will support public health work and important activities such as cancer registration where it is essential to maximise the patient information available.

338. Subsection (4)(c) enables regulations to be made to permit patient information to be processed lawfully where, but for the regulations, this may be prevented by an obligation of confidentiality at common law. This will enable regulations to simplify and clarify rights of confidentiality, subject to the limitations imposed by the clause (see the note on subsection (8)) and human rights requirements.

339. Subsection (4)(d) enables regulations to make provision for the enforcement of regulations made under subsection (3). The power is similar in scope to subsection (2)(c).

340. Subsections (5) - (7) serve to limit the use of the power conferred by subsection (3) to make regulations requiring the processing of confidential patient information (as defined in subsection (11)).

341. Subsection (5) provides that regulations cannot be made under subsection (3) if the purpose for which confidential patient information would be used could be achieved in another reasonably practical way, having regard to cost and available technology. In practice this means, for example, that persons cannot be required to disclose confidential patient information where the purpose can be satisfied by use of anonymised information.

342. Subsection (6) requires the Secretary of State to carry out an annual review of whether regulations made under subsection (3) and requiring the processing of confidential patient information would contravene subsection (5). The review must be conducted within one month of each anniversary of the making of the regulations (paragraph (a)) and, if he determines that they would contravene subsection (5), he must vary or revoke them (paragraph (b)).

343. Subsection (7) provides that regulations may not be made under subsection (3) solely or principally for the purposes of determining the processing of confidential patient information to determine the care and treatment that is to be provided to individual patients. The care and treatment of individuals should be determined by appropriate professional staff that work with, and are responsive to the preferences of, those in their care.

344. Subsection (8) provides that regulations made under this clause cannot make provision for the processing of information which are inconsistent with the provisions of, or the provisions in instruments made under, the Data Protection Act 1998.

345. Subsection (9) requires that before the Secretary of State may make regulations under this clause, he must consult such bodies as appear to him to represent the interests of those likely to be affected by the regulations as he considers appropriate. The consultation is intended to ensure that the regulations are fair and non-discriminatory.

346. Subsection (10) defines patient information as any information that is, or is derived from, information concerning a patient's physical or mental health or condition, the diagnosis of his condition or his care or treatment. In addition to information which directly identifies individuals, this would include information which is either anonymised (e.g. any information that cannot be tracked back to the individual), or coded (e.g. information that can be tracked back to an individual if you are in possession of the key to break the code) .It includes information recorded in any manner, whether electronically or manually.

347. Subsection (11) provides that "confidential patient information" for the purposes of the clause is patient information that has been obtained by a person who owes an obligation of confidence to an individual where the identity of that individual is ascertainable from that information or from that information and other information, which is in, or is likely to come into, the possession of the person processing the information.

348. Subsection (12) defines other terms used in this clause.

Prescribing rights

Clause 68: Extension of prescribing rights

349. Clause 68 introduces new arrangements for the prescribing of medicines. Currently doctors, dentists and certain specified nurses, health visitors and midwives are authorised to prescribe prescription only medicines for human use. The Review of Prescribing, Supply and Administration of Medicines recommended the extension of prescribing rights to other health professionals.

350. Clause 68 amends section 58 of the Medicines Act 1968 which governs the sale, supply and administration of prescription only medicinal products both privately and within the NHS. New subsection (1)(e) enables new registered professional groups to be designated by order for the purpose of prescribing such medicines for human use. For example, physiotherapists may be given prescribing rights for certain drugs eg anti- inflammatories. One of the effects of this policy might be to remove the need for routine visits to the GP for continuing care.

351. Subsection (3) provides that the categories of persons who may be granted prescribing rights must be registered health professionals. It includes provision to ensure that health professionals regulates by statute under separate Scottish and Northern Irish legislation will have the same potential right to prescribe.

352. Subsection (5) allows Ministers to provide by order that specified descriptions of appropriate practitioner designated under subsection (1)(e) (or nurses, midwives or health visitors designated under subsection (1)(d)) must comply with specified conditions relating to the circumstances of prescribing which may apply to appropriate practitioners.

353. Subsection (7) makes it an offence for a person to prescribe a medicinal product in contravention of a condition imposed under subsection (4A) of section 58 or to prescribe a medicinal product for which he is not an appropriate practitioner.

354. Subsection (8) enables the Secretary of State to establish an advisory body under section 4 of the 1968 Act, to consider whether prescribing rights should be granted to any additional group of health professionals and to advise on any conditions or limitations that should be applied to their prescribing, prior to the clause coming into force.

Clause 69: Regulations and orders

355. Clause 69 makes provision about orders and regulations, in particular when they are exercisable by statutory instrument; the parliamentary procedures relating to statutory instruments; and how the powers in question may be exercised.

Clause 70: Supplementary and consequential provision etc

356. Clause 70(1) and (2) enables the Secretary of State by regulations to make supplementary, incidental or consequential provision, or such transitory, transitional or saving provisions, as he considers necessary to give full effect to the Bill. This includes power to amend or repeal any enactment, instrument or document.

357. Subsection (3) provides that such regulations may also be made by the NAW, Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland in respect of devolved matters.

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Prepared: 21 February 2001