Select Committee on Delegated Powers and Regulatory Reform Twenty-Fourth Report


PART 2: STANDARDS

67.  This part makes provision for the creation of a new Commission for Healthcare Audit and Inspection ('the CHAI') which would have responsibility for inspecting NHS health care and also health care in England provided by independent healthcare providers registered under the Care Standards Act 2000, and a new Commission for Social Care Inspection ('the CSCI') which would have responsibility for inspecting local authority social services in England and also social care in England provided by those registered under the Care Standards Act 2000 (CSA 2000).

68.  The remit of the CSCI will take in:

-  all of the work of the Social Services Inspectorate (SSI) (which is currently part of the Department of Health), with the exception of certain policy advice roles that will remain within the Department of Health;

-  the work of the Audit Commission in carrying out studies designed to enable it to make recommendations for improving economy, efficiency and effectiveness in the provision of local authority social services, and for improving the management of social services; and

-  the regulation of social care providers currently carried out by the National Care Standards Commission (NCSC).

69.  The new Commissions will be Non Departmental Public Bodies and will enjoy substantial independence from government. The majority of the delegated powers provided by the Bill in respect of the inspectorates exist because some of the functions of the new Commissions will need to be flexible or specified in more detail than would be appropriate in primary legislation. The remaining delegated powers are needed to provide ministers with a tool for making, bodies that will otherwise be largely independent of government, accountable to government and parliament.

Clause 40: The Commission for Healthcare Audit and Inspection and Schedule 6: CHAI: Supplementary

70.  Clause 40 introduces Schedule 6, which sets out provision of the constitution of the CHAI. The regulation making powers in paragraph 3 (chairman and other members) of this Schedule broadly reflects those conferred upon the Secretary of State under the Health Act 1999 and the Care Standards Act 2000 in relation to CHI and the NCSC respectively.

71.  Sub-paragraphs 3(2) and (3) provide for regulations to specify the manner in which the Secretary of State or the Assembly, as appropriate, may remove from office a person appointed by him/them to the CHAI.

72.  Sub-paragraphs 5(a) and 5(b) allow the Secretary of State to make regulations making provision as to the appointment and tenure of the Chairman and other members of the Commission. Regulations made under subparagraph 5(a) may specify conditions of appointment that must be fulfilled for persons to become members of CHAI. This could include positive qualifications or past experience that are required or a requirement that persons are not disqualified according to specified criteria. It would be inappropriate to include descriptions of these matters on the face of the Bill. This is because both the qualifications or disqualifications relevant to specific appointments and the specific posts themselves, are liable to change over time.

73.  Sub-paragraph 5(b) allows the Secretary of State to make regulations as to the tenure of office of the chairman and other members of the Commission, including the circumstances in which they become disqualified from holding office or may be suspended from office. Sub-paragraph (6) provides that regulations under sub-paragraph (5)(b) will only be able to provide for suspension in cases where it appears to the Secretary of State or the Assembly that the conditions under sub-paragraph (4) have been satisfied. Setting out the tenure of office of the chairman in regulations will allow flexibility around how long the normal term of office should be. It might be that the initial term set could be found to be either too long or too short and we would not want to have to amend primary legislation in order to change this.

74.  Sub-paragraph (8) enables the Assembly to direct that any function conferred on it under paragraph 3 may be exercised by a Special Health Authority. The Secretary of State will able to make such a direction under clause 183: Appointments to certain health and social care bodies.

Clause 41: The Commission for Social Care Inspection and Schedule 7: CSCI Supplementary

75.  Clause 41 introduces schedule 7, which sets out provision in respect of the constitution of the CSCI. Subparagraph 3(3)(a) allows the Secretary of State to make regulations making provision as to the appointment of the Chairman and other members of the Commission. It is appropriate, given these provisions will be complex and will need to be flexible, that such detail should be left to regulations rather than being on the face of the Bill. For example, they will specify the number of members who may be appointed to the board. It is considered important that sufficient flexibility is retained to change this if necessary in secondary legislation. It might, for instance, be appropriate at a given time to appoint a new commissioner with specific responsibility for psychiatric services, if it was felt that these services merited particular attention.

76.  The regulations will also be used to specify conditions of appointment for the CSCI chair and board members. This means they will set out detailed descriptions of the qualifications and past experience that board members will need to have. It is inappropriate for such detail to be placed on the face of the Bill. This broadly reflects regulation making powers taken by the Secretary of State under the Care Standards Act 2000 for the appointment of Chair and board members to the NCSC.

77.  The NCSC was established by the Care Standards Act 2000 to regulate specified types of social care and private and voluntary health care services in England. The types of service subject to regulation under Part 2 are collectively defined in the Act as "establishments and agencies". Persons wishing to carry on establishments and agencies of the types required to be regulated must apply to the NCSC in England and the National Assembly for Wales in Wales to be registered in respect of the establishment or agency which they wish to carry on. Under section 11 of the CSA 2000, it is a criminal offence to carry on or manage an establishment or agency subject to registration requirements without having registered with the registration authority.

78.  Where an establishment or agency applies to register under the CSA 2000, the NCSC inspects it to assess whether it meets the applicable regulatory requirements under the CSA 2000 or other legislation. The NCSC may grant or refuse an application to register an establishment or agency or may register it subject to conditions. The establishment or agency may appeal to an independent tribunal against the refusal of registration or the imposition of conditions.

79.  The types of establishment and agency currently regulated by the NCSC are as follows:

  -  residential and nursing homes;

  -  children's homes;

  -  private and voluntary hospitals and clinics;

  -  fostering agencies;

  -  independent medical agencies;

  -  domiciliary care agencies;

  -  nurses agencies;

  -  residential family centres; and

  -  voluntary adoption agencies.

80.  Adoption support agencies will be regulated by the NCSC when the relevant provisions of the Adoption and Children Act 2002 are implemented, this is currently planned for the end of 2004. Under the provisions of this part, the functions of the NCSC will transfer to the CHAI and the CSCI, and the NCSC will then be abolished.

81.  Sub-paragraph (3)(a) and (b) of Schedule 7 - allows the Secretary of State to make regulations as to the appointment and tenure of office of the chairman and other members of the Commission. Regulations under (3)(a) can provide for any conditions to be fulfilled for appointment such as not being disqualified according to specified criteria. This could include the individual concerned having a previous criminal conviction, having been declared bankrupt or being placed on a list of persons considered unfit to work with children or vulnerable adults. Regulations under (3)(b) can provide for the circumstances in which members cease to hold office or may be suspended from office. Subsection (4) provides that regulations under subsection (3)(b) will only be able to provide for suspension in cases where the conditions under subsection (2) have been satisfied. Setting out the tenure of office of the chairman in regulations will allow flexibility around how long the normal term of office should be. It might be that the initial term set could be found to be either too long or too short and we would not want to amend primary legislation in order to change this. It is also inappropriate for this level of detail to be set out on the face of the Bill.

82.  Subsection (5) states that the CSCI must appoint a Children's Rights Director and makes provision for regulations that will prescribe the functions of that role. It is intended that these will be the same as those currently made under the Care Standards Act 2000 for the Children's Rights Director within the NCSC (Regulations No.1250/2002). Under the Care Standards Act 2000, the NCSC has responsibility for inspecting children's homes, fostering services and local authority adoption and fostering services and the Children's Rights Director has as responsibility inter alia for advising the NCSC as to how it should organise its' inspections of these services to ensure most effectively that the welfare of children in safeguarded and promoted.

Clause 42: Transfer of property etc to CHAI and CSCI and Schedule 8: CHAI and CSCI: Transfers of property and staff, etc

83.  Clause 42 introduces Schedule 8, which sets out provision for the transfer of property, rights and liabilities to the CHAI and the CSCI. This is needed because the CSCI and the CHAI will be taking over the inspection roles from existing inspectorates, the Commission for Health Improvement, the National Care Standards Commission and the Social Services Inspectorate (which is currently a part of the Department of Health). The CHAI will also be taking over from the Audit Commission the Audit Commission's current function of conducting studies as to economy, efficiency and effectiveness in the provision of health care by or for English NHS bodies. CSCI will be taking on the function of conducting comparative and other reviews into the economy, efficiency and effectiveness with which local authorities conduct their social services functions. Whilst the audit commission will retain this function for local authority social services as for other local authority services it is intended that the audit commission would use these powers in future to do studies where social services is only one aspect of the matter under consideration and that where the primary focus of a study is social services, such studies will in the main be conducted by CSCI. It is therefore expected that some Audit Commission staff will transfer to CSCI with their functions. These new functions for CHAI and CSCI, therefore, will necessitate the transfer of some staff and equipment.

84.  Schedule 8 includes a power to make schemes for the transfer of property rights and liabilities. These schemes will be highly detailed, and it would not be possible to set out on the face of the Bill all that they will need to include. In establishing the CHAI and the CSCI it will be necessary for large numbers of staff, equipment and property (as well as other things, such as contracts with companies to provide technical support to the existing inspectorates) to transfer from the current bodies into the new Commissions. The schemes will need to take account of the different circumstances of the different groups of staff (including for example their terms and conditions of employment); different types of equipment and the terms of ownership exerted over them by the predecessor bodies and the minutiae of all the other contracts operated by the predecessor bodies. This would clearly be inappropriate for primary legislation.

Clause 43: Abolition of former regulatory bodies

Clause 44: Quality in health care

Clause 45: Standards set by the Secretary of State

Clause 46: Standards set by the Assembly

Clause 47: Introductory

Clause 48: National performance data

Clause 49: Annual reviews

Clause 50: General reviews

85.  These clauses contain no delegated powers.

Clause 51: Other reviews and investigations

86.  This clause provides for the CHAI to review or investigate health care provided by or for English NHS bodies or cross border Special Health Authorities and in doing so to inspect any such body, or any family health care provider or any other person who provides or is to provide a commissioned service.

87.  Clause 51 provides for the making of regulations to require that an NHS body publish a statement as to the action it will take after any review or investigation has been undertaken on it by the CHAI. The purpose of these regulations is to continue to ensure that NHS bodies remain accountable and can demonstrate to the public their intentions to alleviate any shortcomings that CHAI may find in the discharge of their functions.

Clause 52: Failings

Clause 53: Functions relating to Secretary of State and Assembly

Clause 54: Functions relating to Regulator

Clause 55: Reviews of data

Clause 56: Co-ordination of reviews

Clause 57: Studies as to economy, efficiency, etc

88.  These clauses contain no delegated powers.

Clause 58: Additional functions

89.  This clause permits the Secretary of State to make regulations prescribing additional functions for CHAI in the future with respect to the provision of health care by or for NHS bodies (provided that where the regulations cover health care provided by or for Welsh NHS bodies, the Secretary of State must obtain the consent of the Assembly) or the improvement of economy, efficiency and effectiveness in the exercise of the functions of English NHS bodies or their financial or other management.

90.  The health care sector is constantly changing, with new initiatives emerging that might necessitate giving additional functions to CHAI which have not yet been identified and therefore cannot be dealt with at this time on the face of the Bill itself.

91.  The Health Act 1999 made similar provision in relation to the Commission for Health Improvement. The Secretary of State must consult the regulator and obtain the consent of the Assembly as set out in subsections (2) and (3) before he makes any regulations under this clause.

Clause 59: Criteria

92.  Clause 59 deals with the exercise of CHAI's inspection and review functions. Subsection (1)(a) provides a power for the Secretary of State to make regulations requiring the CHAI to devise and publish statements of the criteria to be used in the exercise of certain functions of CHAI that relates to both English and Welsh NHS bodies. Under subsection (2), the Assembly may make regulations with respect to the exercise of these functions in relation to health care by or for Welsh NHS bodies.

93.  Under subsection (1)(b), the Secretary of State alone may make regulations requiring the CHAI to devise and publish criteria to be used in the exercise of certain functions that relate to only English NHS bodies and cross border Special Health Authorities.

94.  Subsection (3) provides that any regulations made by the Secretary of State under clause 58(1)(a), conferring a new function on CHAI in relation to health care by or for NHS bodies (i.e. which expression includes Welsh NHS bodies), may provide that one or more of clause 59(1)(a), (1)(b) or (2) shall apply in relation to the exercise by CHAI of that new function. This is necessary to ensure that appropriate provision may be made in relation to such a function, which might concern health care by or for Welsh NHS bodies only, English NHS bodies and cross-border Special Health Authorities only, or a mixture of the two.

95.  Generally, the regulation making powers in the clause enable the appropriate authority to specify the functions of CHAI in relation to which it is required to devise and publish statements of criteria. Subsection (4) provides that the regulations may require the CHAI to obtain the consent of the Secretary of State or the Assembly before publishing a statement. The purpose of the power is to ensure that it will be possible to reflect changes in the ways in which health care services are delivered and in the matters in relation to which it is necessary for criteria to be devised and published. There would be insufficient flexibility if provision were made on the face of the Bill and required primary legislation to change.

96.  Although ministers will have ultimate responsibility for approving inspection criteria, the CHAI will be responsible for drawing up criteria in the first instance. This will allow the CHAI to use their expertise to ensure that the criteria against which NHS bodies will be reviewed and inspected are fair and reflective of the needs of service users. Ministers will only withhold approval in instances where it is felt that the CHAI have failed properly to do this.

97.  By subsection (1) and (2), the appropriate authority is under a duty to consult CHAI prior to making regulations.

Clause 60: Provision of material

98.  This clause contains no delegated powers.

Clause 61: Fees

Clause 62: Fees: Wales

99.  Clause 61(1) provides a power for CHAI to be able to make and publish provision requiring persons to pay fees in relation to the exercise of such of its functions under Chapter 3 as may be prescribed. Clause 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.

100.  Similar powers in relation to Welsh NHS bodies are provided under clause 62 (Fees: Wales). 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.

101.  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 which CHAI must take into account before it determines any fee.

102.  These are both necessary powers. Specifying matters in regulations that CHAI must take into account, and the manner in which they must do so, will ensure that CHAI will make and publish provision for the payment of fees on an appropriate basis and in a way that ensures transparency for those subject to the fees. For instance, CHAI could be required to take into account the need to obtain a certain return on capital, or to grade fees according to the intensity of the review that takes place. Or it could be required to publish certain types of information to explain the amount of fees charged. To include details of these matters on the face of the Bill would not give the flexibility to amend matters that CHAI must take into account in the future, or the manner in which they must make provision, should that be necessary or desirable.

103.  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. This introduces an important element of accountability into the fee levying process when such a fee is charged.

Clause 63: Reports and information

Clause 64: Right of entry

Clause 65: Right of entry: Supplementary

Clause 66: Power to require documents and information, etc

104.  These clauses contain no delegated powers.

Clause 67: Power to require explanation

105.  This clause gives the Secretary of State the power to make regulations requiring prescribed persons to provide to the CHAI an explanation of documents or other information obtained by CHAI or persons authorised by it to act on its behalf under clauses 64 to 66 (Right of entry, Right of entry: supplementary and Power to require documents and information etc). It also provides for regulations to be able to prescribe the times and places at which explanations may be given.

106.  The power to require an explanation of the information obtained by it is an important tool for CHAI. It will enable it to question those in positions of responsibility about perceived discrepancies within the data it has received or about instances where information it has obtained provides evidence of failings in the provision of health care.

107.  Subsection (3) provides that any person who fails to comply with any requirement imposed by virtue of this clause will be guilty of a criminal offence. It is thus very important that the individuals whom the CSCI may call upon to give an explanation are properly circumscribed, as are the circumstances under which they may be called.

108.  Provisions covering areas such as these will be highly detailed and liable to change over time and so are more appropriate for secondary legislation.

Clause 68: Reviews and investigations relating to Wales

Clause 69: Reporting to Secretary of State

Clause 70: Right of entry

Clause 71: Right of entry: Supplementary

Clause 72: Power to require documents and information

109.  These clauses contain no delegated powers.

Clause 73: Power to require explanation

110.  This clause provides the same power for the Assembly to make regulations in respect of Wales as does clause 67 for the Secretary of State in respect of England.

Clause 74: Introductory

Clause 75: Information and advice

Clause 76: Review of studies and research

Clause 77: Annual reviews

Clause 78: Other reviews and investigations

Clause 79: Failings

Clause 80: Studies as to economy, efficiency, etc

Clause 81: Joint working with audit commission

111.  These clauses contain no delegated powers.

Clause 82: Additional functions

112.  Clause 82 permits the Secretary of State to make regulations prescribing additional functions for the CSCI in relation to English local authority social services. The social care sector is constantly changing, with new initiatives emerging that might necessitate giving additional functions to the CSCI which have not yet been identified and therefore cannot be dealt with on the face of the Bill itself. The purpose of this power therefore is to ensure that sufficient flexibility is retained to ensure that the CSCI can be given additional functions by means of secondary legislation, where this would be desirable, in order to enable it to be responsive to changing trends in social services and social care provision.

Clause 83: Criteria

113.  Clause 83 deals with the exercise of the CSCI's inspecting and reviewing functions. The clause provides a power for the Secretary of State to make regulations requiring the CSCI to devise and publish statements of the criteria to be used in the exercise of any of its functions and to obtain the consent of the Secretary of State before publishing any such statement. The regulations will be used to specify for inspections of which types the CSCI will need to draw up inspection criteria.

114.  The purpose of this regulation making power is to ensure that the matters for which the CSCI will be asked to produce criteria can change, and to be responsive to changing ways in which social services are delivered. There would be insufficient flexibility if this provision was on the face of the Bill and required primary legislation to change.

115.  Although ministers will have ultimate responsibility for approving inspection criteria, the CSCI will be responsible for drawing up criteria in the first instance. This will allow the CSCI inspectors to use their expertise to ensure that the criteria against which local authorities will be inspected are fair and reflective of the needs of service users. Ministers will only withhold approval in instances where it is felt that the CSCI have failed properly to do this.

Clause 84: Fees

116.  Clause 84 provides a power for the CSCI to be able to determine and levy fees from local authorities in relation to the exercise of its functions under clauses 77, 78 and 80 of the Bill (concerned with annual reviews, other reviews and investigations and studies into efficiency, economy etc.). The CSCI must consult the appropriate persons before publishing any scale of fees.

117.  Subsection (4) confers a regulation making power on the Secretary of State enabling him to prescribe the manner by the CSCI's fees under this section are made and published and the matters to be taken into account by the CSCI before it determines the fees. These are both necessary powers. Firstly it is important that fee levels are presented to local authorities in an informative and transparent manner, the regulation making power will allow ministers to ensure that this is so for example the regulations might specify the type of information which CSCI should provide to explain the amount of fees to be charged. Secondly by specifying matters that the CSCI must take into account ministers will be able to ask the commission to, for example, grade fees according the intensity of inspection that a local authority requires or to grade them in accordance with the time spent on the annual inspections of each local authority. In both of these cases the provision will be highly detailed and may be subject to changes. As such it is appropriate that they are placed in regulation making powers rather than on the face of the Bill.

118.  Subsection (6) is a regulation making power that would allow the Secretary of State to make provisions for an independent person or panel to review the individual charges levied by the CSCI in a particular case, and substitute a lesser one if they deem it appropriate. This introduces an important element of accountability into the fee levying process and provides that the CSCI is not the sole arbiter of such fees it may charge to local authorities. The regulations will need to specify the circumstances when it would be appropriate for the panel to review such a fee and also the mechanisms whereby such a review may be carried out. The detail needed is more appropriate to regulations than the face of the Bill.

Clause 85: Reports and information

Clause 86: Right of entry

Clause 87: Right of entry: Supplementary

Clause 88: Power to require information, etc

119.  These clauses contain no delegated powers

Clause 89: Power to require explanation

120.  This clause gives the Secretary of State the power to make regulations to prescribe individuals who can be obliged by the CSCI to explain documents or other information obtained by the CSCI or persons authorised by it to act on its behalf. It also provides for regulations prescribing the circumstances (e.g. times and places) under which explanations may be given.

121.  The power to require an explanation of the information obtained by it is an important tool for the CSCI. It will enable it to question those in positions of responsibility about perceived discrepancies within the data it has received or about instances where information it has obtained provides evidence of failings in a local authority's social services.

122.  Subsection (3) provides that any person who fails to comply with any requirement imposed by virtue of this clause will be guilty of a criminal offence. It is thus very important that the individuals whom the CSCI may call upon are properly circumscribed, as are the circumstances under which they may be called.

123.  The regulations will be used to specify types of person who must give an explanation and the times and places where explanations must be given. They may make different provision for different cases. It is necessary to set some ground rules for the process so that councillors and local authority workers can have some expectation of when they are likely to be called to give an explanation by the CSCI. In the absence of such ground rules there is a danger that councillors and local authority workers could feel under constant threat of being called to give an account to the CSCI and this could be detrimental to their performance of their other functions. Provisions covering areas such as these will be highly detailed and are more appropriate to secondary legislation than the face of the Bill. The provisions may also need to change in order to be responsive to the changing ways in which social services departments are organised.

Clause 90: General function

Clause 91: Reviews of studies and research

124.  These clauses contain no delegated powers.

Clause 92: Reviews and investigations

125.  This clause provides that the Assembly may make regulations to require a local authority in Wales to pay a fee to the Assembly in relation to adoption and fostering functions under the Care Standards Act 2000. As the amounts required to be paid will change over time, this is best left to regulations.

Clause 93: Studies as to economy, efficiency, etc

126.  This clause contains no delegated powers.

Clause 94: Additional functions

127.  This clause allows for the Assembly to make regulations to provide for those additional functions for CSCI that are specified in regulations under clause 82 to apply to the Assembly.

Clause 95: General considerations

Clause 96: Right of entry

Clause 97: Right of entry: Supplementary

Clause 98: Power to require information

128.  These clauses contain no delegated powers.

Clause 99: Power to require explanation

129.  This clause makes equivalent regulatory provision for the Assembly as provided for the Secretary of State in clause 89.

Clause 100: Transfer of functions to CHAI and CSCI

130.  This clause contains no delegated powers.

Clause 101: General functions of CHAI

131.  Clause 101 inserts new section 5A into the Care Standards Act 2000 and provides that the Secretary of State may make regulations to confer additional functions on the CHAI in relation to the provision in England of independent health services.

132.  The purpose of this power is to ensure that sufficient flexibility is retained to ensure that CHAI can be given additional functions by means of secondary legislation, where this would be desirable, in order to enable it to be responsive to changing trends in health services and health care provision.

Clause 102: General functions of CSCI

133.  Clause 102(7) permits the Secretary of State to make regulations prescribing additional functions for the CSCI in relation to the provision in England of registered social care services. For example, regulations under this clause could be used to make the CSCI responsible collecting statistics from establishments and agencies, registered under the Care Standards Act 2000. This regulation making power is needed in order to ensure that sufficient flexibility is maintained to enable the CSCI to be given additional functions should this be considered desirable in the future.

Clause 103: Fees

134.  Clause 103 inserts a new section 113A into the Care Standards Act 2000 so that the CHAI and CSCI may determine fees in respect of Part 2 of that Act. A regulation making power is provided at subsection (5) to enable the Secretary of State to make and substitute any provision determining a fee payable to CHAI or CSCI under that Part.

Clause 104: Meaning of 'independent medical agency'

Clause 105: Children's homes providing secure accommodation

Clause 106: Information and inspection

Clause 107: Assembly: Duties relating to children

Clause 108: Boarding schools and colleges

Clause 109: Boarding schools and colleges: Reports

Clause 110: Secure training centres

135.  These clauses contain no delegated powers.

Clause 111: Complaints about health care

136.  Subsections (1)(a) and (b) and (2)(a) and (b) enable the Secretary of State to make regulations that will set out the procedure for the handling and consideration of complaints about health care by or for English or cross border Special Health Authorities, or the exercise of their functions, and the Assembly to make regulations for handling and consideration of complaints about health care by or for Welsh NHS bodies or the exercise of their functions.

137.  Subsections (1)(c) and (2)(c) enable regulations to be made in relation to complaints about services provided by an English or Welsh NHS body or cross border Special Health Authority, or other person, under section 31 of the Health Act 1999. This is intended to facilitate the resolution of complaints involving "packages" of services that have elements of both health and social care.

138.  In both England and Wales, and in combination with clause 113, clause 111 enables regulations to replace various Directions made under the NHS Act 1977, the Hospital Complaints Procedure Act 1985 (which is revoked in the current Bill so far as it applies in England and Wales), the NHS and Community Care Act 1990, and the NHS (Primary Care) Act 1997. It also enables regulations to provide for the independent consideration of complaints in England by the Commission for Healthcare Audit and Inspection (CHAI) and in Wales, by an independent panel, should the NHS body be unable to resolve the complaint locally.

139.  Subsection (3) enables regulations to specify which persons or bodies can consider a complaint, including the NHS body in question, the CHAI, an independent lay person or an independent panel established in the manner prescribed or other person or body.

140.  It is envisaged that the focus of the CHAI's role in relation to the second stage of the complaints procedure in England will be to establish the facts pertinent to a complaint in order to identify how, and by whom, the complaint is most likely to be resolved to the satisfaction of the complainant and the body or persons complained about. Following the CHAI's assessment of an individual case, it is envisaged that it will decide what, if any, further action, and by whom, is appropriate. Options likely to be available to the CHAI include: making recommendations to the NHS body complained about in relation to further action that may be needed locally to resolve the complaint; full investigation by the CHAI, either by itself or by any independent panel or person established or engaged by the CHAI; referral for consideration by other agencies (for example, the National Clinical Assessment Authority or a professional regulatory body); referral, subject to agreed criteria, for consideration by the Health Service Commissioner or no further action to be taken. In Wales, it is envisaged that an independent panel will perform this role. The nature of the roles of various bodies concerned is clearly a detailed matter which is better dealt with in regulations rather than on the face of the Bill.

141.  Subsection (4) enables regulations to make provision for complaints to be referred to a Health Service Commissioner for them to consider whether to investigate the compliant under the Health Service Commissioners Act 1993, or to any other person or body who may take action as a result of the complaint.

Clause 112: Complaints about social services

142.  This clause enables the Secretary of State to make regulations that will set out the procedure for the handling and consideration of complaints about local authority social services functions in England, and enable the Assembly to make regulations that will set out the handling and consideration procedure in Wales. Complaints that can be considered under section 24D or section 26 of the Children Act 1989 (children leaving care or looked after children) cannot be considered under this procedure.

143.  In both England and Wales and in combination with clause 113, it replaces the powers currently provided by Section 7B of the Local Authority Social Services Act 1970 to make Directions setting out the procedure to be followed by local authorities. It also provides for the independent consideration of complaints in England by CSCI and in Wales, by an independent panel, should the local authority be unable to resolve the complaint locally. The effect of the new provisions is that complaints about adults' and children's services will all be considered under procedures established by regulation. This will create greater consistency.

144.  Subsections (1)(c) and (3)(c) enable regulations to be made in relation to complaints about services provided by a local authority under section 31 of the Health Act 1999. This complements provisions made in clause 111 and is intended to facilitate the resolution of complaints involving 'packages' of services that have elements of both health and social care.

145.  Subsections (2) and (4) enable regulations to be made to specify which persons or bodies can consider a complaint, in particular for England, these would be the local authority in question, the CSCI, an independent panel established in a manner to be prescribed or another person or body, and for Wales, these would be the local authority in question, an independent panel or another person or body.

146.  Subsection (5) enables regulations to make provision for a complaint to be referred the Commission for Local Administration in England or the Commission for Local Administration in Wales for complaints in England and Wales respectively, for them to consider whether to investigate the complaint under Part 3 of the Local Government Act 1974.

Clause 113: Complaints regulations: Supplementary

147.  This clause makes supplementary provision in relation to regulations for England and Wales made under the previous clauses, in relation to complaints about health care and complaints about social care. The clause aims to cover the common powers that are needed for any regulations under the previous clauses. Subsection (2), paragraphs (a) - (h) enable regulations to be made to specify:

  -  the persons who may make a complaint;

  -  the complaints which may or may not be made;

  -  the complaints which need not be considered;

  -  the period within which complaints must be made;

  -  the procedure to be followed in making a complaint and after the complaint is made;

  -  matters which are excluded from consideration;

  -  the making of a report or recommendations about a complaint; and

  -  the action to be taken as a result of a complaint.

148.  We believe that detailed procedures of this nature are best dealt with in regulations as opposed to on the face of the Bill.

149.  Subsection (3) enables regulations to be made about making payments in relation to the consideration of complaints, of such an amount as may be specified in, or calculated or determined under the regulations. The intention is to enable CSCI or CHAI in England and the independent panel in Wales, to recover costs incurred in carrying out their function in respect of investigating complaints from the person or body in respect of whom the complaint is made. This section also enables regulations to be made providing for an independent panel to review the amount chargeable in any particular case and substitute a lesser amount if it thinks fit.

150.  Subsection (4)(a) enables regulations to provide for different parts or aspects of a complaint to be treated differently. Subsection (4)(b) enables the regulations to require the production of information or documents.

151.  Subsection 4(c) enables regulations to be made to authorise the disclosure of information relevant to a complaint to another party considering the complaint or to whom the complaint has been referred, notwithstanding any common law obligation of confidence that might otherwise prohibit or restrict the disclosure. The purpose of the provision is to enable the regulations to provide for persons considering complaints to be given all relevant material notwithstanding common law obligations, and in particular the need to obtain consent from the data subject in any case where it is not clear that disclosure is in the "public interest" [2].

152.  In situations where a complaint is being investigated, it will be important that the body investigating the complaint have access to all relevant information. This will be particularly necessary where partnership arrangements are in operation. For example, the CSCI will need to share information with the CHAI, and vice versa, and there may be the need to share information with an independent panel or another person or body to whom a complaint is referred who may take action. There may also be a need to share information with any of the Commissions involved in the consideration of a complaint. In addition, it may be impractical to obtain the consent of the data subject to disclosure, or consent may be withheld. Thus, there is a need to make provision in the regulations to override the common law duty of confidence to ensure that bodies conducting the statutory function of investigating complaints have all the necessary information to arrive at an informed conclusion.

153.  This clause will not override the provisions of the Data Protection Act 1998.

154.  Subsections (5) and (6) enable regulations to be made for complaints about a variety of matters, not all of which could be considered as complaints under one set of regulations. The intention is that where there is a complaint which would fall to be considered under two different schemes, the regulations will provide for the complaint to be considered by the two schemes running in parallel, rather than operating under one scheme only. The intention is that a single complaint of this kind would trigger action under both sets of regulations, each working in parallel, so that for the complainant, it appears as one system. However, each scheme would be looking at their respective areas whilst maintaining communication with each other throughout.

Clause 114: Further consideration of representations under the Children Act 1989

155.  Subsection 1(1) of clause 111 inserts a new section 26ZA into the Children Act 1989 which gives the Secretary of State in relation to England the power to make regulations for the further consideration of complaints which have been considered by a local authority under section 24D or 26.

156.  Section 26ZA(2) enables the Secretary of State to make regulations that will set out in detail how the CSCI will deal with complaints, including:

  -  the procedure to be followed in considering complaints;

  -  making recommendations for action;

  -  making reports; and

  -  referring to other bodies, in particular referral back to the local authority for further consideration, referral to the Commission for Local Administration in England or to an independent panel established under the regulations.

157.  We believe that detailed procedures of this nature are best dealt with in regulations.

158.  Section 26ZA(3) enables regulations to be made about payments to be made for the consideration of complaints, of an amount as may be specified in, or calculated or determined under the regulations. The intention is that any such payments would be paid by the body complained about to the body considering the complaint in respect of the costs of carrying out its function in respect of investigating complaints. This section also enables regulations to be made providing for an independent panel to review the amount chargeable and substitute a lesser amount if it thinks fit.

159.  Section 26ZA(4) enables regulations to be made to require the production of information or documents by any person of a description prescribed in the regulations. Regulations may also permit the disclosure of information relevant to a complaint to another party notwithstanding any common law duty of confidentiality. This clause will not override the specific obligations under the Data Protection Act 1998, namely, that information relating to an individual must not be disclosed without the consent of that individual unless it is necessary to do so for any of the reasons specified in the Act. This is consistent with provisions made in clause 113.

160.  Clause 115 also inserts section 26ZB into the Children Act 1989, which broadly replicates the provisions of 26ZA, and concerns complaints made under the Children Act procedure in Wales.

161.  In this case, however, the Assembly has decided that unresolved complaints should be considered by an independent panel.

162.  This approach is consistent with other Clauses in the Bill which make separate provision for Wales - covering the same functions and providing the same safeguards for individuals as in England, but taking account of the different organisational and structural approaches chosen by the Assembly.

Clause 115: Representations relating to special guardianship support services

163.  This clause inserts into Section 26 of the Children Act 1989 a new subsection (3C), that extends the duty under Section 26(3) for every local authority to establish a procedure for considering any representations (including complaints), to any representations (including complaints) made to the authority by:

(a)  a child with respect to whom a special guardianship order is in force;

(b)  a special guardian or a parent of such a child;

(c)  such other person as the authority consider has a sufficient interest in the welfare of such a child to warrant his representations being considered by them; or

(d)  any person who has applied for an assessment under section 14F(3) or (4), about the discharge by the authority of such functions under section 14F (special guardianship support services) as may be specified by the Secretary of State in regulations.

164.  This replaces the power to make regulations about handling complaints about special guardianship support services contained in Section 14G of the Children Act 1989, which is revoked by this amendment.

165.  The intention to allow certain complaints about special guardianship support services to be resolved through the Children Act procedure was set out in the explanatory notes to the Adoption and Children Act 2002. This will allow for situations where a complaint is made about a support service that is provided for the most direct benefit of a child subject to a special guardianship order to be resolved via the Children Act procedure. Where the complainant is not a child, the complaint is about a support service that is of much less direct benefit to the child subject to a special guardianship order and is not directly in relation to the child the complaint will not come under the Children Act procedure.

Clause 116: Complaints about handling of complaints

Clause 117: Complaints: Data protection

166.  These clauses contain no delegated powers.

Clause 118:Co-operation, etc

167.  Subsection (2) provides for the Secretary of State to prescribe the circumstances in which the CHAI and the CSCI must consult with one another. It is envisaged that in many of the instances where it would be desirable for the CSCI and the CHAI to consult each other, that they would do so without needing to be asked by the Secretary of State. However, there will be instances where consultation will be essential, and it is considered necessary to be able to make regulations to specify in detail the circumstances in which consultation may be necessary. Regulations may require the CHAI and the CSCI to consult each other before carrying out inspections of a particular type of service such as a mental health facility providing integrated health and social services provision in order to reduce the burdens on those subject to inspection. It is important here that we have the power of flexibility that regulations afford, to adapt to the changing way in which health and social services are delivered.

168.  Subsection (4) provides for the Secretary of State to prescribe the conditions subject to which the CSCI and the CHAI may enter arrangements for the pooling of their financial resources. In order to ensure that both bodies are financially accountable, it is important that there are rules governing their ability to pool resources. Such rules are likely to contain such matters as the accounts which the bodies should keep regarding pooled arrangements, to require that they have a written agreement concerning how any unused funds at the end of the accounting period are to be dealt with, and the manner in which accounts of the pooled funds would need to be kept. The level of details which it will be necessary to specify about these matters is such that it is more appropriate to be dealt with in secondary legislation than on the face of the Bill.

Clause 119: Reviews and investigations

169.  This clause contains no delegated powers.

Clause 120: Joint annual reviews

170.  This clause allows the Secretary of State to make regulations that would specify certain health and social care services [the services specifies could be wider than those provided under an arrangement - i.e.: could cover core functions of an NHS body that it exercises along with social care functions exercised by it under arrangements] for which a joint annual review must be carried out and a joint performance rating awarded by CHAI and CSCI acting together.

171.  Section 31 of the Health Act 1999 allows health and social care bodies, such as local authorities, primary care trusts (PCTs) and NHS trusts to form partnerships to improve the provision of health and social care services. This is used to provide services which involve elements of both health and social care provision. The key powers that section 31 provides are the abilities to pool funds and delegate functions to enable integrated provision and lead commissioning (where partners come to an agreement that one of them will take the lead in commissioning services for their mutual benefit). Many different types of health and social care services are provided under the arrangements and these can vary widely with respect to size and the amount of resource involved.

172.  For example a pooled budget could be set up between a primary care trust and social services department with the PCT delegating its functions to the social services department. This would enable the local authority to take the lead in commissioning a range of joined up adult learning disability services, covering areas for which both the local authority and PCT were responsible. Such an arrangement would provide seamless services for the service users, and minimise management costs and provide value for money for the PCT and social services department. Other services commonly provided under a section 31 partnership include services for older people, rehabilitative care facilities, child and adolescent healthcare and mental health services.

173.  As the numbers and type of section 31 partnerships are constantly increasing it was though important to have a broad regulation making power that would enable Secretary of State to prescribe certain services for which a review should be carried out should this be deemed appropriate in the future. For example, regulations could specify that all jointly provided mental health services provided under a section 31 partnership should be subject to a joint annual review by the CHAI and the CSCI.

174.  Such a joint review would enable a separate performance rating to be given for the jointly provided service, in addition to separate health and social care ratings given to the social services department and the PCT providing them. This would recognise the jointly provided service as something distinct and would be able to demonstrate whether it had added any value to the service provision.

175.  However, it will not necessarily add value for the CHAI and the CSCI to carry out the joint reviews of all section 31 partnership arrangements, precisely because the services currently provided under section 31 vary so widely. It would therefore be difficult at present for a meaningful comparison to be drawn from the star rating awarded as it would be difficult to compare like with like. The regulation making power allows us to retain the flexibility offered by secondary legislation to decide when and if value could be added by an additional joint annual review for particular kinds of integrated provision and provide that this should be done only in those circumstances. Our view of the types of service provision for which a joint review would be appropriate is likely to change over time, which makes it particularly important that we are able to retain the flexibility that this regulation making power gives us.

176.  It is also clear that for those services for which the CHAI and the CSCI must conduct a joint review we will need to set out some quite detailed requirements. This would make it inappropriate for this provision to be on the face of the Bill rather than in regulations.

Clause 121: Power to assist

177.  This clause contains no delegated powers.

Clause 122: Arrangements with ministers, etc: CHAI

178.  Clause 122 enables a Minister of the Crown to arrange with the CHAI for the CHAI to carry out any of its functions in relation to prescribed health schemes for which the Minister is responsible, For example arrangements may be made between CHAI and the Secretary of State for Defence in respect of provision of health care to the armed forces and between CHAI and the Home Secretary in respect of health care in immigration facilities.

179.  A regulation making power here is considered necessary to enable the Secretary of State to prescribe the precise scheme in relation to which such arrangements may be made.

Clause 123: Arrangements with Ministers etc: CSCI

Clause 124: Arrangements with the Isle of Man and Channel Islands: CHAI

Clause 125: Arrangements with the Isle of Man and Channel Islands: CSCI

Clause 126: Annual reports: CHAI

Clause 127: Annual reports: CSCI

180.  These clauses contain no delegated powers.

Clause 128: Duty to have regard to government policy

181.  Clause 128(1) enables the Secretary of State to direct the CHAI to have regard to specified aspects of government policy. He may do so in relation to any function of CHAI (with the exception of certain functions that concern health care by or for both English and Welsh NHS bodies). In relation to those excepted functions, subsection (3) gives the Secretary of State power to make such directions with respect to the exercise of those functions in relation to health care by or for English NHS bodies and cross-border Special Health Authorities, and the Assembly a similar power with respect to the exercise of those functions in relation to health care by or for Welsh NHS bodies.

182.  Subsection (4) provides that any regulations made by the Secretary of State under clause 58(1)(a), conferring a new function on CHAI in relation to health care by or for NHS bodies (i.e. which expression includes Welsh NHS bodies), may disapply subsection (1) and/or may require the CHAI in exercising the function in relation to health care by or for a Welsh NHS body to have regard to specified aspects of the Assembly's policy. This is necessary to ensure that appropriate provision may be made in relation to such a function, which might concern health care by or for Welsh NHS bodies only, English NHS bodies and cross-border Special Health Authorities only, or a mixture of the two.

183.  Generally, the direction making power in this clause could be used to ensure that the CHAI took government or Assembly priorities into account, if it was apparent that it was not doing so. Since such priorities will sometimes change, it is appropriate that this should be dealt with through delegated legislation.

Clause 129: Duty to have regard to government policy: CSCI

184.  This clause contains a direction making power that places a duty upon the Commission to have regard to such aspects of government policy as the Secretary of State directs. Such a direction could be used to ensure that the Commission took government priorities into account if it was apparent that it was not doing so. Since such priorities will sometimes change, it is appropriate that this should be dealt with through such a delegated power.

Clause 130: Failure in the discharge of functions: CHAI

185.  This clause enables the Secretary of State to issue a direction to CHAI where he considers that it is failing to a significant extent to discharge properly any of its functions, or failing to discharge them at all. The CHAI is under obligation to comply with any such direction, which can be varied or revoked by a further direction.

186.  As CHAI has functions in both England and Wales, the Secretary of State must first consult the Assembly before giving any direction with respect to a failure which relates to the exercise by the CHAI of certain functions that are exercisable in relation to both English and Welsh NHS bodies

187.  Subsection (3) provides that any regulations made by the Secretary of State under clause 58(1)(a), conferring a new function on CHAI in relation to health care by or for NHS bodies (i.e. which expression includes Welsh NHS bodies), may provide that the Assembly and not the Secretary of State may give directions to the CHAI under subsection (1) or that the Assembly as well as the Secretary of State may give such directions. This is necessary to ensure that appropriate provision may be made in relation to such a function, which might concern health care by or for Welsh NHS bodies only, English NHS bodies and cross-border Special Health Authorities only, or a mixture of the two.

188.  Generally, the direction making power in this clause is necessary because, although the CHAI will be an independent body, it will be held accountable to Parliament through the Secretary of State. It is important, in respect of the CHAI's public accountability, for the Secretary of State to be able to issue a direction to CHAI if he considers that it is failing to carry out its functions. Whilst it is not envisaged that this direction making power would be used that often, if at all, it will act as a default power.

Clause 131: Failure in discharge of functions: CSCI

189.  This clause enables the Secretary of State to issue a direction to the CSCI where he considers that it is failing significantly to discharge any of its functions properly, or failing to discharge them at all. The CSCI is under obligation to comply with any such direction, which can be varied or revoked by a further direction.

190.  This direction making power is necessary because, although the CSCI will be an independent body, it will be held accountable to Parliament through ministers. It is important, in respect of the CSCI's public accountability, for the Secretary of State to be able to issue a direction to the CSCI if he considers that it is failing to carry out its functions properly. Whilst it is not envisaged that this direction making power would be used often, it is an important default power.

Clause 132: Inquiries: CHAI

Clause 133: Inquiries: CSCI

191.  This clause enables the Secretary of State to cause an inquiry to be held into the exercise by the CSCI of its functions. This power would only be used where there was concern that the CSCI has exercised its functions inappropriately. Subsection (2) enables the Secretary of State to determine whether or not an inquiry into the CSCI's functions should be held privately. This is important since the CSCI's functions cover a wide variety of sensitive issues, for example potential criminal cases involving the abuse of individuals. Given these circumstances it will be necessary for certain inquiries into the CSCI to be held in private so that the privacy of individuals can be protected.



Clause 134: Disclosure of information obtained by CHAI

Clause 135: Section 134: Defence

Clause 136: Information obtained by CHAI: Supplementary

Clause 137: Information obtained by CSCI: Supplementary

Clause 138: Annual reports of Assembly

Clause 139: Use by Assembly of information

Clause 140: Inquiries: Wales

Clause 141: Co-operation between Assembly and CHAI

Clause 142: Offences by bodies corporate

Clause 143: Minor and consequential amendments

Clause 144: Interpretation of Part 2

Clause 145: References to the provision of health care

192.  These clauses contain no delegated powers.


2   The common law obligation of confidence provides that, where information is conveyed on the understanding that it is confidential, anybody disclosing that information without authorisation may be liable in damages. There is an exception to this where information is disclosed in the public interest. In deciding whether it is in the public interest for information to be disclosed, it is necessary to conduct a balancing exercise to assess whether the public benefit is proportionate to the negative effect on the individual of disclosing information relating to him.

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