House of Lords - Explanatory Note
Health And Social Care (Community Health And Standards) Bill - continued          House of Lords

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Clause 38: General duty of NHS foundation trusts

124.     This clause requires each NHS foundation trust to exercise its functions effectively, efficiently, and economically.

Supplementary

Clause 39: Interpretation of Part 1

125.     Subsection (2) provides that expressions used in Part 1, other than those specifically defined in subsection (1), have the same meaning as in the 1977 Act. Examples are the terms "property", which in the 1977 Act includes rights; "hospitals" which is given a detailed definition that includes a number of health care institutions; and "the health service", which means the National Health Service provided by the Secretary of State pursuant to the 1977 Act.

PART 2 -STANDARDS

Clause 40: The Commission for Healthcare Audit and Inspection, and Clause 41: The Commission for Social Care Inspection

126.     The Command Paper Delivering the NHS Plan: Next steps on investment, next steps on reform 8 set out the Government's intention to create a new Commission for Healthcare Audit and Inspection ('the CHAI') which would have responsibility for the review and inspection of providers of NHS health care and also for the registration under the CSA 2000 of independent providers of health care in England, and a new Commission for Social Care Inspection ('the CSCI') which would have responsibility for inspecting local authority social services in England and also for the registration under the CSA 2000 of providers of social care services in England.

    8 For copies - website address: www.doh.gov.uk/deliveringthenhsplan/index.htm

127.     Schedule 6 deals with the constitution of the CHAI. Schedule 7 makes the same provision for the CSCI as Schedule 6 does for the CHAI with the following notable exceptions.

  • ???Paragraph 3 provides for the membership of the CSCI but gives no role to the Assembly in the appointment and removal from office of members. This is because the CSCI will be an England only body.

  • ???Paragraph 5 provides for the staffing of the CSCI. Subparagraph (2) provides that the CSCI must appoint a member of staff as a Children's Rights Director, whose role will be prescribed in regulations. The intention is that the Children's Rights Director should ensure that the regulatory aspect of the CSCI's work takes full account of children's rights and welfare in relation to its regulatory work under Part II of the CSA 2000.

  • ???Paragraph 9 allows the Secretary of State to provide funding to the CSCI and to direct the CSCI as to how it applies this funding. Again, because the CSCI is an England only body there is no role for the Assembly in this process.

Reviews of NHS health care in England and Wales - overview

128.     In relation to NHS health care in England and Wales, responsibility is divided between the CHAI and the Assembly. The Assembly remains primarily responsible for reviewing the provision of health care by and for NHS bodies in Wales (Chapter 4). CHAI has responsibility for reviewing the provision of health care by and for NHS bodies in England and cross-border bodies (Chapter 3). However, CHAI also has some functions relating to review of the overall provision of health care across England and Wales (see clauses 48 and 50); and may in future be given further functions relating to England and Wales (clause 58).

CHAPTER 2 - NHS HEALTH CARE: INTRODUCTORY

Clause 44: Quality in health care

129.     Clause 44 places a duty on all NHS bodies to ensure that appropriate arrangements are in place to monitor and seek to improve the quality of health care. This replaces the current duty of quality in section 18 of the Health Act 1999. Under subsection (2), "health care" includes the promotion and protection of public health, whereas in the Health Act 1999 it was limited to services for or in connection with the prevention, diagnosis or treatment of illness.

130.     Subsection (3) states that 'illness' has the same meaning as in section 128(1) of the 1977 Act, that it includes mental disorder within the meaning of the Mental Health Act 1959 and any injury or disability requiring medical or dental treatment or nursing.

Clause 45: Standards set by Secretary of State

131.     Clause 45 gives the Secretary of State the power to prepare and publish a statement of standards in relation to the provision of health care by and for English NHS bodies and cross-border Special Health Authorities. It is envisaged that these standards are likely to be informed by Government National Service Frameworks (NSFs) 9, guidelines of the National Institute for Clinical Excellence (NICE) 10 and other relevant sources.

    9 The objective of Government National Service Frameworks (NSFs) is to tackle particular health issues, for example mental health, by setting out aims to improve particular services or care provided.

    10 NICE is a special health authority set up to give advice on best clinical practice to NHS clinicians, to those commissioning NHS services and to patients and carers.

132.     Subsection (4) makes it clear that English NHS bodies and cross-border Special Health Authorities should take these standards into consideration in making arrangements under clause 44. Clause 53(2) enables the CHAI, during the exercise of its functions, to advise the Secretary of State or the Assembly of any changes that it considers should be made in relation to these standards.

Clause 46: Standards set by Assembly

133.     As accountability for NHS provision in Wales rests with the Assembly, clause 46 provides for the Assembly to set its own statement of standards.

134.     As with standards set by the Secretary of State, it is likely that the Assembly standards will be informed by NSF guidance and NICE guidelines. Subsection (4) operates in the same manner with respect to the Assembly and Welsh NHS bodies as subsection (4) of clause 45 does in respect of the Secretary of State and English NHS bodies. The CHAI may advise the Assembly under clause 53(2) of any changes it considers should be made to the standards.

CHAPTER 3 - NHS HEALTH CARE: FUNCTIONS OF CHAI

General functions

Clause 47: Introductory

135.     Clause 47 places a duty on the CHAI to encourage improvement in NHS health care by or for all NHS bodies. Under this clause, the CHAI will be able to give information or advice to NHS bodies or others who provide NHS health care. It states that the CHAI, in exercising its functions under clauses 48 to 56 in relation to English NHS bodies and cross-border Special Health Authorities, shall be concerned with the availability and access, the quality and effectiveness, and the economy and efficiency of health care provided by or for NHS bodies, and with the need to safeguard and promote the rights and welfare of children.

Clause 48: National Performance Data

136.     This clause enables the CHAI to publish data on the performance of NHS bodies and other persons who provide health care, across NHS bodies in England and Wales.

Clause 49: Annual Reviews

137.     Clause 49 gives the CHAI the function of undertaking annual reviews, taking the statement of standards (as provided for in clause 45) into account, of the provision of health care by and for each English NHS body and each cross-border Special Health Authority. Following each annual review of a body, the CHAI will award a performance rating. Subsections (2) and (3) provide for the CHAI to devise and publish criteria against which these reviews will be carried out. The Secretary of State will approve such criteria.

Clause 50: Reviews: England and Wales

138.     This clause gives the CHAI a function of conducting reviews across England and Wales of health care generally or of particular kinds of health care, for example, national cancer services. CHAI may undertake such reviews under its own initiative or at the request of the Secretary of State, who must first consult the Assembly before making a request.

Clause 51: Reviews and Investigations: England

139.     Clause 51 provides for the CHAI to review or investigate health care provided by or for English NHS bodies and cross-border Special Health Authorities with a view to making a report. The CHAI may also review the way such bodies are monitoring and seeking to improve such health care for the purpose of discharging their duty under clause 44. English NHS bodies may provide health services on behalf of Welsh NHS bodies, and where this occurs the Assembly also may review and investigate these services under clause 66. This also applies in respect of cross-border Special Health Authorities.

140.     The CHAI may undertake reviews either under its own initiative or at the request of the Secretary of State.

Clause 52: Failings

141.     Where the CHAI considers that there are significant failings in the health care provided by or for NHS bodies, subsections (2), (4) and (6) oblige the CHAI to make a report to the Secretary of State, Assembly or the regulator as appropriate. Subsections (3), (5) and (7) enable the CHAI to recommend that the appropriate authority take special measures to improve the health care provided. Such measures could include calling on the CHAI to undertake a re-inspection of the body concerned or other practical assistance or organisational support.

Clause 53: Functions relating to the Secretary of State and Assembly:

142.     Clause 53 places a duty on the CHAI to keep the Secretary of State, in relation to English or cross-border NHS bodies, and the Assembly in relation to Welsh NHS bodies, informed about health care provided by or for NHS bodies.

143.     Subsection (2) allows for the CHAI, where it considers it timely or appropriate, to give advice to the Secretary of State or the Assembly on any particular changes which it thinks should be made in order to secure improvements in the quality of NHS health care including in relation to the statement of standards referred to in clauses 45 and 46.

Clause 54: Functions relating to the regulator

144.     Clause 54 places a duty on the CHAI to keep the Independent Regulator informed about health care provided by or for NHS foundation trusts. The appointment of a person to the office of the Independent Regulator and his powers are dealt with in clause 2 and Schedule 2.

Clause 55: Reviews of data

145.     This clause enables the CHAI to review the quality of any data collected by others on health care provided by and for NHS bodies and to make a report of its findings.

Clause 56: Co-ordination of reviews

146.     Clause 56 provides for the CHAI to promote the effective co-ordination of reviews or assessments by public bodies or other persons which undertake reviews of the provision of health care by or for English NHS bodies and cross border Special Health Authorities. The Assembly is to perform this function in relation to Welsh NHS bodies, under its powers in the 1977 Act.

Other functions

Clause 57: Studies as to economy, efficiency etc

147.     This clause enables the CHAI to carry out comparative or other studies for improving economy, efficiency and effectiveness in the exercise of any functions of Primary Care Trusts, NHS trusts in England, NHS foundation trusts or Strategic Health Authorities. These studies may be undertaken at the request of such bodies or on the CHAI's own initiative.

148.     The Audit Commission, under section 33(1) of the Audit Commission Act 1998 previously carried out such studies in relation to these bodies. Paragraphs 10(6) and (9) of Schedule 9 of the Bill removes all of these bodies - apart from NHS foundation trusts, which are not currently within the scope of those provisions - from the scope of section 33(1) and (4) of the 1998 Act.

149.     Within Wales, the function of carrying out these studies will remain with the Audit Commission. However, in carrying out reviews and investigations generally, the Assembly is required under clause 68 to be concerned with the economy and efficiency of the provision of health care. It is the Assembly's intention that the Audit Commission will continue to work with the Assembly in relation to reviews and investigations of health care by or for Welsh NHS bodies.

Clause 58: Additional functions

150.     It is envisaged that the CHAI may need to be given additional functions with respect to the provision of health care by or for NHS bodies or for the improvement of economy, efficiency and effectiveness in relation to English NHS bodies, in the future. This clause therefore makes provision for such functions to be given by regulations. Before making such regulations, the Secretary of State must first consult the Assembly where such additional functions concern health care which does not have a strictly English or cross border aspect to it.

Supplementary

Clause 59: Criteria

151.     This clause provides for the Secretary of State or the Assembly as appropriate to make regulations requiring the CHAI to devise and publish statements of criteria to be used by it in exercising its functions under clauses 47(1), 48, 50 or 52, in relation to health care provided by and for NHS bodies.

152.     The Secretary of State may also make regulations with respect to the exercise of the CHAI's functions under clauses 51, 56, 57 and 58(1).

153.     The regulations may require the CHAI to obtain the consent of the appropriate authority before publishing any such statement. Before making any such regulations the appropriate authority must first consult the CHAI.

Clause 61: Fees and Clause 62:Fees: Wales

154.     Clause 61(1) provides a power for the CHAI to be able to make and publish provision requiring persons to pay fees in relation to the exercise of prescribed functions under this Chapter. Section 61(1)(a) provides for it to be able to charge fees to NHS bodies and cross border Special Health Authorities, and clause 61(1)(b) provides for it to be able to charge fees to any person of a prescribed description who provides health care for an English NHS body or cross border Special Health Authority.

155.     Similar powers in relation to Welsh NHS bodies are provided under clause 62. CHAI may not charge a Welsh NHS body under the provisions of clause 61(1)(b) and may not charge an English NHS body or cross border Special Health Authority under clause 62(1)(b). By subsection (5) of both clauses, CHAI is under a duty to consult appropriate persons before specifying any provisions.

156.     Subsection (6) of both clauses confers a regulation making power on the appropriate authority to prescribe the manner in which CHAI's fees are made and published and to enable the appropriate authority to specify the matters that CHAI must take into account before it determines any fee.

157.     Subsection (7) of both clauses will allow the appropriate authority to make provisions for an independent person or panel to review the charge levied by CHAI in a particular case, and to substitute a lesser one if they deem it appropriate.

Clause 64: Right of entry

158.     This clause provides that individuals authorised by the CHAI may enter and inspect premises that are owned or controlled by an NHS body or which are used or proposed to be used for any purpose connected with the provision of health care by or for NHS bodies, or the discharge of functions of those bodies.

Clause 65: Right of entry: supplementary

159.     Subsection (1) allows a person (authorised to enter and inspect premises by virtue of clause 64) to inspect and copy relevant documents or records. It also allows inspectors to interview any person working at the premises or any patients or persons receiving health care that consent to be interviewed. Inspectors may also require relevant records or other documents on the premises to be produced for inspection, and where they are stored on computer, for them to be produced in a legible, not encrypted, form. Subsection (4) imposes a requirement to assist an inspector and permits the inspector to take such measurements and photographs and make such recordings as he considers necessary to enable him to exercise his powers under clause 64.

Clause 66: Power to require documents and information

160.     Clause 66 confers on the CHAI a general power to require information and documents from the bodies or persons listed in subsection (2) irrespective of whether or not the CHAI is conducting an inspection, where such information relates to the provision of health care by or for an NHS body or the discharge of functions of an NHS body and where the CHAI considers it necessary or expedient to have the information or documents for its purposes under this Chapter.

161.     Subsection (2)(c) gives the CHAI the right to require information or documents from a local authority. This will enable the CHAI to obtain information or documents kept by a local authority for its own purposes, where that information is relevant to the exercise of CHAI's functions under this Chapter. For example, the CHAI might request information as to how quickly the local authority responds to requests by an NHS trust to assess the social services needs of persons ready to be discharged from hospital.

Clause 67: Power to require explanation

162.     Under this clause, regulations may make provision for the CHAI to require an explanation of any documents or information it obtains under clauses 64 to 66 or any matters which are the subject of the CHAI's functions under this Chapter. Subsection (2) enables these regulations to set the requirement that individuals must be present at a specified place to give an explanation. The CHAI will use this power to enable it to discuss with those responsible any matters of concern that its inspections have brought to light.

163.     Clauses 65(5), 66(4) and 67(3) make it an offence for a person to obstruct the exercise of any of the CHAI's powers under these sections or to fail to comply with any requirement. The penalty on summary conviction is a fine not exceeding level 4 (£2500) on the standard scale.

CHAPTER 4 - NHS HEALTHCARE: FUNCTIONS OF NATIONAL ASSEMBLY FOR WALES

Reviews and investigations

Clause 68: Reviews and investigations relating to Wales

164.     The Commission for Health Improvement ('CHI') undertook reviews of, and investigations into, healthcare provided by NHS bodies both in England and Wales. This clause provides for the Assembly to take on these functions in relation to health care by or for Welsh NHS bodies. Under section 63 of the Government of Wales Act 1998, the Assembly has the power to delegate its inspection function to its staff. It is the stated intention of the Assembly to set up an internal unit to carry out this function.

165.     In the same way that clause 51 provides for particular matters to be considered by the CHAI in undertaking its review and investigation functions, subsection (2) provides that the Assembly shall focus the reviews and investigations on the availability, quality, effectiveness and management of health care services and the need to safeguard and promote the rights and welfare of children and subsection (4) provides for the making of a report.

Clause 69: Reporting to Secretary of State and the Regulator

166.     English NHS bodies may provide health services on behalf of Welsh NHS bodies, and where this occurs the Assembly may review and investigate these services under clause 68. Where the Assembly detects significant failings in the provision of services by an English NHS body, clause 69 provides that the Assembly must report this to the Secretary of State. This also applies in respect of cross-border Special Health Authorities.

167.     Additionally, the Assembly in carrying out reviews and investigations may at times review health care provided by NHS Foundation Trusts for Welsh NHS bodies. If the Assembly detects failings relating to NHS Foundation Trusts it will be required to report the same to the Regulator.

Ancillary powers

Clause 70: Right of entry, clause 71: Right of entry, supplementary, clause 72: Power to require documents and information and clause 73: Power to require explanation

168.     Clauses 70 to 73 make the same provision with respect to powers of entry and powers to obtain documents and information in relation to the Assembly as clauses 64 to 67 do in relation to the CHAI.

CHAPTER 5 - SOCIAL SERVICES: FUNCTIONS OF CSCI

Provision of social services

Clause 74: Introductory

169.     This clause places a duty on the CSCI to encourage improvement in the provision of local authority social services in England. It provides that in exercising its functions in respect of local authority social services, the CSCI will be concerned in particular with the availability, access, quality, effectiveness, management, economy and efficiency of these services, and also have regard to the need to promote and safeguard the rights and welfare of children and should consider in particular how local authorities are doing this.

170.     The Bill defines English local authority social services at clause 144. The definition of English local authority social services in the Bill includes both local authority social services as defined in the Local Authority Social Services Act 1970 ('LASS Act') and services provided under local authorities' broad discretionary power under section 2(1)(b) of the Local Government Act 2000 where those services are similar to local authority social services as defined in the LASS Act.

171.     Local authority social services are defined in the LASS Act as services provided under the enactments specified in Schedule 1 to that Act. Examples of local authority social services are child protection services, support services to elderly people to enable them to stay in their own homes and the provision of special equipment to help disabled people with their daily living needs. Section 2(1)(b) of the 2000 Act provides local authorities with a broad discretionary power to provide services calculated to improve the wellbeing of people in their area.

Clause 75: Information and advice

172.     Clause 75 places a duty on the CSCI to keep the Secretary of State informed about the social services provided by English local authorities. Subsection (2) allows for the CSCI to give advice to the Secretary of State on any matters connected with this subject as it sees fit. In particular the CSCI may advise the Secretary of State of any changes to standards issued under section 23 of the CSA 2000 that, if made could secure an improvement in the performance by local authorities in England of their adoption and fostering functions. These standards are National Minimum Standards that represent the minimum service level expected of local authorities in exercising their adoption and fostering functions. Similar National Minimum Standards are also issued under section 23 in respect of adoption and fostering services provided by voluntary sector adoption and fostering agencies.

Clause 76: Review of studies and research

173.     This clause enables the CSCI to evaluate work carried out by other bodies, such as academic institutions, into the provision of English local authority social services. The CSCI will be able to make a judgement on the lessons that may be learned from such work. The CSCI must publish a report of the work it undertakes in this area.

Clause 77: Annual Reviews

174.     Clause 77 gives the CSCI the function of undertaking an annual review of social services provided by every local authority England. This includes services 'commissioned' by a local authority. For example, a local authority might pay for an elderly person to be placed in a voluntary or private sector care home. In assessing how well a local authority is discharging its social services functions the CSCI will consider the extent to which 'commissioned' services meet the needs of those for whom they are have been 'commissioned'.

175.     Following each annual review of a local authority, the CSCI will award a performance rating (subsection 2). In practice this will mean the award of a 'star rating'. 'Star rating' is not a term set out in the legislation. The star rating system was introduced by the Secretary of State in October 2001. Its aim is to provide a simple indicator of the level of performance of a local authority in its provision of social care services in any one year. The star ratings awarded for social services are included in the annual comprehensive performance assessment of local authorities.

176.     Subsections (3) and (4) provide for the CSCI to devise and publish criteria against which these reviews will be carried out. The Secretary of State will approve such criteria. Subsection (5) places a duty upon CSCI to carry out any annual reviews under this section in accordance with any timetable that has been specified by the Secretary of State. The Secretary of State could specify for example that the reviews must be carried out in conjunction with the Comprehensive Performance Assessment (carried out annually of all local authorities) so that disruption to local authorities' work was minimised.

177.     When carrying out annual reviews the CSCI must take into account guidance issued to local authorities under section 7 of the LASS Act 11 (subsection (6)). Subsection (7) provides that when CSCI inspects a local authority's adoption and fostering functions as part of an annual review it must also take into account standards published under section 23 of the CSA 2000 that relate to such functions (National Minimum Standards for local authority adoption and fostering services).

    11 This is guidance issued by the Secretary of State to local authorities with regard to the exercise of their functions. Case law establishes that local authorities must comply with such guidance unless they have good reason not to do so.

178.     In order for the CSCI to carry out these reviews and investigations, subsection (8) enables the CSCI to inspect the local authority being reviewed or any person 'commissioned' on behalf of that local authority to provide a local authority social service.

 
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Prepared: 14 July 2003