Health and Social Care Bill (HC Bill 221)

(9) Where Monitor is required (apart from this section) to consult about, or afford
a person an opportunity to make representations about, a proposal that comes
within subsection (1), the requirements of this section—

(a) are in addition to the other requirement, but

(b) 5may be met contemporaneously with it.

(10) Every annual report of Monitor must set out—

(a) a list of the assessments carried out under this section during the
financial year to which the report relates, and

(b) a summary of the decisions taken during that year in relation to
10proposals to which assessments carried out during that year or a
previous financial year relate.

65 Information

(1) Information obtained by, or documents, records or other items produced to,
Monitor in connection with any of its functions may be used by Monitor in
15connection with any of its other functions.

(2) For the purposes of exercising a function under this Part, the Secretary of State
may request Monitor to provide the Secretary of State with such information
as the Secretary of State may specify.

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

66 20Failure to perform functions

(1) This section applies if the Secretary of State considers that Monitor is failing, or
has failed, to perform any function of Monitor’s and that the failure is
significant.

(2) The Secretary of State may direct Monitor to perform such of those functions,
25and in such manner and within such period, as the direction specifies.

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

(4) If Monitor fails to comply with a direction under subsection (2), the Secretary
of State may—

(a) 30perform the functions to which the direction relates, or

(b) make arrangements for some other person to perform them on the
Secretary of State’s behalf.

(5) Where the Secretary of State exercises a power under subsection (2) or (4), the
Secretary of State must publish the reasons for doing so.

(6) 35Reference in subsection (1) to failure to perform a function includes a reference
to failure to perform it properly.

CHAPTER 2 Competition

67 Functions under the Competition Act 1998

(1) The functions referred to in subsection (2) are concurrent functions of Monitor
and the Office of Fair Trading.

(2) 5The functions are those that the Office of Fair Trading has under Part 1 of the
Competition Act 1998, other than sections 31D(1) to (6), 38(1) to (6) and 51, so
far as relating to any of the following which concern the provision of health
care services in England—

(a) agreements, decisions or concerted practices of the kind mentioned in
10section 2(1) of that Act (anti-competitive practices),

(b) conduct of the kind mentioned in section 18(1) of that Act (abuse of
dominant position),

(c) agreements, decisions or concerted practices of the kind mentioned in
Article 101 of the Treaty on the Functioning of the European Union
15(anti-competitive practices),

(d) conduct which amounts to abuse of the kind mentioned in Article 102
of that Treaty (abuse of dominant position).

(3) So far as necessary for the purposes of subsections (1) and (2), references in Part
1 of the Competition Act 1998 to the Office of Fair Trading are to be read as
20including references to Monitor, except in sections 31D(1) to (6), 38(1) to (6), 51,
52(6) and (8) and 54).

68 Functions under Part 4 of the Enterprise Act 2002

(1) The functions referred to in subsection (2) are concurrent functions of Monitor
and the Office of Fair Trading.

(2) 25The functions are those that the Office of Fair Trading has under Part 4 of the
Enterprise Act 2002 (market investigations), other than sections 166 and 171, so
far as relating to activities which concern the provision of health care services
in England.

(3) So far as necessary for the purposes of subsections (1) and (2), references in Part
304 of the Enterprise Act 2002 to the Office of Fair Trading (including references
in provisions of that Act applied by that Part) are to be read as including
references to Monitor, except in sections 166 and 171.

(4) Before the Office of Fair Trading or Monitor first exercises functions which are
exercisable concurrently by virtue of this section, it must consult the other.

(5) 35Neither the Office of Fair Trading nor Monitor may exercise in relation to any
matter functions which are exercisable concurrently by virtue of this section if
functions which are so exercisable have been exercised in relation to that
matter by the other.

(6) Section 117 of the Enterprise Act 2002 (offences of supplying false or
40misleading information) as applied by section 180 of that Act is to have effect
so far as relating to functions exercisable by Monitor by virtue of this section as
if the references in section 117(1)(a) and (2) to the Office of Fair Trading
included references to Monitor.

69 Competition functions: supplementary

(1) No objection may be taken to anything done by or in relation to Monitor under
the Competition Act 1998 or Part 4 of the Enterprise Act 2002 on the ground
that it should have been done by or in relation to the Office of Fair Trading.

(2) 5Subject to subsection (3), sections 58 and 61 (general duties of Monitor) do not
apply in relation to anything done by Monitor in the carrying out of its
functions by virtue of section 67 or 68.

(3) In the carrying out of any functions by virtue of section 67 or 68, Monitor may
nevertheless have regard to any of the matters in respect of which a duty is
10imposed by section 58 or 61 if it is a matter to which the Office of Fair Trading
is entitled to have regard in the carrying out of those functions.

(4) In section 9E of the Company Directors Disqualification Act 1986 (specified
regulators in cases of disqualification for competition infringements), in
subsection (2) after paragraph (e) insert “;

(f) 15Monitor.”

(5) In section 54 of the Competition Act 1998, in subsection (1) (definition of
“regulator” for the purposes of Part 1 of that Act)—

(a) omit the “and” preceding paragraph (g), and

(b) after that paragraph insert “; and

(h) 20Monitor.”

(6) In section 136 of the Enterprise Act 2002 (investigations and reports on market
investigation references)—

(a) in subsection (7) (meaning of “relevant sectoral enactment”), at the end
insert—

“(i) 25in relation to Monitor, section 68 of the Health and Social
Care Act 2011.”,

(b) in subsection (8) (meaning of “relevant sectoral regulator”), for
“Communications or” substitute “Communications,”, and

(c) in that subsection, after “Utility Regulation” insert “or Monitor”.

(7) 30In section 168 of that Act (regulated markets)—

(a) in subsection (3) (meaning of “relevant action”), after paragraph (n)
insert—

“(o) modifying the conditions of a licence issued under
section 94 of the Health and Social Care Act 2011.”,

(b) 35in subsection (4) (meaning of “relevant statutory functions”), after
paragraph (p) insert—

“(q) in relation to any licence issued under section 94 of the
Health and Social Care Act 2011, the duties of Monitor
under sections 58 and 61 of that Act.”, and

(c) 40in subsection (5) (meaning of “sectoral regulator”), after paragraph (i)
insert—

“(ia) Monitor;”.

70 Requirements as to procurement, patient choice and competition

(1) Regulations may impose requirements on the National Health Service
45Commissioning Board and commissioning consortia for the purpose of

securing that, in commissioning health care services for the purposes of the
NHS, they—

(a) adhere to good practice in relation to procurement;

(b) protect and promote the right of patients to make choices with respect
5to treatment or other health care services provided for the purposes of
the NHS;

(c) do not engage in anti-competitive behaviour which is against the
interests of people who use such services.

(2) Requirements imposed by regulations under this section apply to an
10arrangement for the provision of goods and services only if the value of the
consideration attributable to the services is greater than that attributable to the
goods.

(3) Regulations under this section may, in particular, impose requirements
relating to—

(a) 15competitive tendering for the provision of services;

(b) the management of conflicts between the interests involved in
commissioning services and the interests involved in providing them.

(4) The regulations may provide for the requirements imposed, or such of them as
are prescribed, not to apply in relation to arrangements of a prescribed
20description.

71 Requirements under section 70: investigations, declarations and directions

(1) Regulations under section 70 may confer on Monitor—

(a) a power to investigate a complaint that the National Health Service
Commissioning Board or a commissioning consortium has failed to
25comply with a requirement imposed by the regulations;

(b) a power to investigate on its own initiative whether the National Health
Service Commissioning Board or a commissioning consortium has
failed to comply with a requirement imposed by virtue of section
70(1)(c);

(c) 30a power to require the Board or a commissioning consortium to provide
it with such information as Monitor may specify for the purposes of an
investigation it carries out by virtue of paragraph (a) or (b);

(d) a power to require the Board or a commissioning consortium to provide
an explanation of such information as it provides by virtue of
35paragraph (c).

(2) A power conferred by virtue of subsection (1)(a) is exercisable only where
Monitor considers that the person making the complaint has sufficient interest
in the arrangement to which the complaint relates.

(3) Regulations under section 70 may confer on Monitor a power to declare that an
40arrangement for the provision of health care services for the purposes of the
NHS is ineffective.

(4) The power conferred by virtue of subsection (3) is exercisable only in
prescribed circumstances and subject to prescribed restrictions and only where
Monitor is satisfied that—

(a) 45the National Health Service Commissioning Board or a commissioning
consortium has failed to comply with a requirement of regulations
under section 70, and

(b) the failure is sufficiently serious.

(5) On a declaration being made by virtue of subsection (3)(a), the arrangement is
void; but that does not affect—

(a) the validity of anything done pursuant to the arrangement,

(b) 5any right acquired or liability incurred under the arrangement, or

(c) any proceedings or remedy in respect of such a right or liability.

(6) Regulations under section 70 may confer on Monitor a power to direct the
National Health Service Commissioning Board or a commissioning
consortium—

(a) 10to put in place measures for the purpose of preventing failures to
comply with requirements imposed by the regulations or mitigating
the effect of such failures;

(b) to remedy a failure to comply with such a requirement;

(c) not to exercise in a prescribed manner prescribed functions in relation
15to arrangements for the provision of health care services;

(d) to vary or withdraw an invitation to tender for the provision of health
care services;

(e) to vary an arrangement for the provision of health care services made
in consequence of putting the provision of the services out to tender.

(7) 20A failure to comply with a requirement imposed by regulations under section
70 which causes loss or damage is actionable, except in so far as the regulations
restrict the right to bring such an action.

(8) Regulations under section 70 may—

(a) provide for a specified defence to such an action;

(b) 25prevent a person who has brought such an action under the Public
Contracts Regulations 2006 (S.I. 2006/5S.I. 2006/5) from bringing such an action
under the regulations under section 70 in respect of the whole or part
of the same loss or damage.

72 Requirements under section 70: undertakings

(1) 30Regulations under section 70 may confer on Monitor a power to accept an
undertaking (referred to in this Chapter as a “section 72 undertaking”) from the
National Health Service Commissioning Board or a commissioning
consortium to take such action of a kind mentioned in subsection (2) as is
specified in the undertaking within such period as is so specified.

(2) 35The specified action must be—

(a) action of a description given in paragraphs (a) to (e) of section 71(6), or

(b) action of such a description as may be prescribed.

(3) Where Monitor accepts a section 72 undertaking then, unless the Board, or (as
the case may be) the consortium from whom the undertaking is accepted, has
40failed to comply with the undertaking or any part of it, Monitor may not—

(a) continue to carry out the investigation in question,

(b) make a declaration by virtue of subsection (3) of section 71 in relation
to the arrangement in question, or

(c) give a direction by virtue of subsection (6) of that section in relation to
45the failure in question.

(4) Where the Board, or (as the case may be) the consortium from whom Monitor
has accepted a section 72 undertaking, has failed to comply fully with the
undertaking but has complied with part of it, Monitor must take the partial
compliance into account in deciding whether to do something mentioned in
5paragraphs (a) to (c) of subsection (3).

(5) Schedule 9 (which makes further provision about section 72 undertakings) has
effect.

73 Guidance

(1) Monitor must publish guidance about—

(a) 10compliance with requirements imposed by regulations under section
70;

(b) how it intends to exercise powers conferred on it by regulations under
that section.

(2) Before publishing guidance under subsection (1)(a), Monitor must consult—

(a) 15the National Health Service Commissioning Board, and

(b) such other persons as Monitor considers appropriate.

(3) Before publishing guidance under subsection (1)(a) or (b), Monitor must obtain
the approval of the Secretary of State.

(4) Monitor may revise guidance under this section and, if it does so, must publish
20the guidance as revised.

74 Mergers involving NHS foundation trusts

(1) Part 3 of the Enterprise Act 2002 (mergers) applies (in so far as it would not
otherwise) to each of the following cases as it applies to a case where two or
more enterprises have ceased to be distinct enterprises.

(2) 25The first case is where the activities of two or more NHS foundation trusts have
ceased to be distinct activities.

(3) The second case is where the activities of one or more NHS foundation trusts
and the activities of one or more businesses have ceased to be distinct activities.

(4) In subsections (2) and (3), a reference to the activities of an NHS foundation
30trust or a business includes a reference to part of its activities.

(5) In this section, “enterprise” and “business” each have the same meaning as in
Part 3 of the Enterprise Act 2002.

75 Reviews by the Competition Commission

(1) The Competition Commission must review—

(a) 35the development of competition in the provision of health care services
for the purposes of the NHS, and

(b) the exercise by Monitor of its functions under this Part in relation to the
provision of health care services for those purposes.

(2) Before beginning a review under this section, the Commission must publish a
40notice specifying the matters it proposes to consider in the review.

(3) In carrying out the review, the Commission must consider whether those
matters have or may be expected to have any effects adverse to the public
interest.

(4) The Commission must complete the review, and publish a report of it, before
5the end of the period of 12 months beginning with the day on which the notice
relating to the review was published under subsection (2).

(5) The Commission must send a copy of the report to—

(a) the Secretary of State,

(b) Monitor, and

(c) 10the National Health Service Commissioning Board.

(6) Where the Commission concludes that one or more of the matters it considered
in the review has or may be expected to have effects adverse to the public
interest, it must include in the report its recommendations to the Secretary of
State, Monitor and the National Health Service Commissioning Board as to
15how to remedy those effects.

(7) Each of those persons must reply to the Commission to say what the person
proposes to do in the light of the recommendations; the reply must be made
before the end of the period of six months beginning with the day on which the
report was published.

(8) 20Where the Commission is carrying out a review under this section, Monitor
must give the Commission—

(a) such information in Monitor’s possession as the Commission may
require to enable it to carry out the review,

(b) such other information in Monitor’s possession as it considers would
25assist the Commission in carrying out the review, and

(c) such other assistance as the Commission may require to assist it in
carrying out the review.

(9) The first review under this section must begin before the end of 2019.

(10) A subsequent review under this section must begin before the end of the
30period of seven years beginning with the date on which the Commission
published the report of the previous review under this section.

(11) For the purposes of the law of defamation, absolute privilege attaches to a
report under this section.

(12) In paragraph 19A of Schedule 7 to the Competition Act 1998 (duty of Chairman
35to make rules of procedure), in the definition of “special reference group” in
sub-paragraph (9)—

(a) after “an investigation” insert “or (in the case of the Health and Social
Care Act 2011) a review”,

(b) omit the “or” preceding paragraph (p), and

(c) 40after that paragraph insert “; or

(q) section 75 of the Health and Social Care Act 2011.”

76 Reviews under section 75: powers of investigation

(1) The following provisions of Part 3 of the Enterprise Act 2002 (mergers) apply,
with the modifications in subsections (2) to (8), for the purposes of the exercise

by the Competition Commission of its function under section 75(3) as they
apply for the purposes of investigations on references under that Part—

(a) section 109 (attendance of witnesses and production of documents),

(b) section 110 (enforcement of powers under section 109: general),

(c) 5section 111 (penalties),

(d) section 112 (penalties: main procedural requirements),

(e) section 113 (payments and interest by instalments),

(f) section 114 (appeals in relation to penalties),

(g) section 115 (recovery of penalties),

(h) 10section 116 (statement of policy),

(i) section 117 (offence of supplying false or misleading information), and

(j) section 125 (offences by bodies corporate) so far as relating to section
117.

(2) Section 110 has effect as if—

(a) 15subsection (2) were omitted,

(b) in subsection (4), for “the report of the Commission on the reference
concerned” there were substituted “the report of the Commission on
the review concerned”,

(c) for subsections (5) to (8) there were substituted—

“(5) 20Where the Commission considers that a person has
intentionally altered, suppressed or destroyed a document
which he has been required to produce under section 109, it
may impose a penalty in accordance with section 111.”, and

(d) in subsection (9), for the words from “or (3)” to “section 65(3))” there
25were substituted “, (3) or (5)”.

(3) Section 111 has effect as if—

(a) in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and

(b) in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.

(4) Section 111(5)(b)(ii) has effect as if—

(a) 30for “the reference concerned” there were substituted “the review
concerned”,

(b) the words “(or, in the case of a report under section 50 or 65, given)”
were omitted,

(c) the words “(or given)”, in each place they appear, were omitted, and

(d) 35the words “by this Part” were omitted.

(5) Section 112 has effect as if, in subsection (1), for “or (3)” there were substituted
“, (3) or (5)”.

(6) Section 114 has effect as if, in subsection (1), for “or (3)” there were substituted
“, (3) or (5)”.

(7) 40Section 115 has effect as if for “or (3)” there were substituted “, (3) or (5)”.

(8) Section 116 has effect as if, in subsection (2), for “or (3)” there were substituted
“, (3) or (5)”.

(9) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
purposes of sections 109 to 116 of that Act (including, in particular, provisions
45relating to the making of orders) have effect for the purposes of the application

of those sections by virtue of subsection (1) in relation to those sections as
applied by virtue of that subsection.

(10) Accordingly, corresponding provisions of this Act do not have effect in relation
to those sections as applied by virtue of this section.

77 5Reviews under section 75: considerations relevant to publication

(1) Before publishing a report under section 75, the Competition Commission
must have regard to the following considerations.

(2) The first consideration is the need to exclude from publication (so far as
practicable) information the publication of which the Commission considers
10would be contrary to the public interest.

(3) The second consideration is the need to exclude from publication (so far as
practicable)—

(a) commercial information the publication of which the Commission
considers would or might significantly harm the legitimate business
15interests of a person to whom it relates, or

(b) information relating to the private affairs of an individual the
publication of which the Commission considers might significantly
harm the individual’s interests.

(4) The third consideration is the extent to which publication of information
20mentioned in subsection (3)(a) or (b) is necessary for the purposes of the report.

78 Co-operation with the Office of Fair Trading

(1) Monitor and the Office of Fair Trading must co-operate with each other in the
exercise of their respective functions under the Competition Act 1998 and the
Enterprise Act 2002.

(2) 25In particular each must give the other—

(a) such information in its possession as the other may require to enable it
to exercise those functions,

(b) such other information in its possession as it considers would assist the
other in exercising those functions, and

(c) 30such other assistance as the other may require to assist it in exercising
those functions.

CHAPTER 3 Designated services

79 Designation of services

(1) The commissioner of a health care service for the purposes of the NHS may
35apply to Monitor for the designation of the service for the purposes of this Part.

(2) The commissioner may make the application only if—

(a) it has consulted the relevant persons, and

(b) it is satisfied the criterion in subsection (3) is met.

(3) The criterion is that ceasing to provide the service concerned for the purposes
of the NHS would, in the absence of alternative arrangements for the provision
of the service for those purposes, be likely to—

(a) have a significant adverse impact on the health of persons in need of the
5service, or

(b) cause a failure to prevent or ameliorate a significant adverse impact on
the health of such persons.

(4) In determining whether that criterion is met, the commissioner must (in so far
as it would not otherwise be required to do so) have regard to—

(a) 10the current and future need for the provision of the service for the
purposes of the NHS,

(b) whether ceasing to provide the service for those purposes would
significantly reduce equality between those for whom the
commissioner arranges for the provision of services with respect to
15their ability to access services provided for those purposes, and

(c) such other matters as may be specified in guidance under section 87.

(5) An application under this section must be accompanied by copies of the
responses the commissioner received to the consultation under subsection
(2)(a).

(6) 20Monitor may grant an application under this section only if—

(a) having regard to the matters in subsection (4), it is satisfied that the
criterion in subsection (3) is met, and

(b) it is satisfied that the commissioner carried out consultation in
accordance with subsection (2)(a).

(7) 25Monitor must give notice of its decision on an application under this section
to—

(a) the commissioner, and

(b) every relevant person.

(8) Where Monitor grants the application, a notice under subsection (7) given to a
30provider of a service for the purposes of the NHS must explain the rights
conferred by section 80.

(9) Where Monitor refuses the application, a notice under subsection (7) given to
the commissioner or the provider of the service must—

(a) give the reasons for the refusal, and

(b) 35explain the rights conferred by section 81.

(10) Where the applicant under this section is the National Health Service
Commissioning Board, the relevant persons are—

(a) the Secretary of State,

(b) the Care Quality Commission and its Healthwatch England committee,

(c) 40every local authority in whose area the service is provided for the
purposes of the NHS,

(d) every local Healthwatch organisation in whose area the service is
provided for those purposes,

(e) every person who, in pursuance of arrangements with the Board,
45provides the service for the purposes of the NHS, and

(f) such other persons as the Board considers appropriate.