Health and Social Care Bill (HC Bill 221)

Health and Social Care BillPage 220

(3) Where an enactment imposes a requirement of that kind which applies
to part only of the United Kingdom, a register is to be regarded as a
voluntary register in so far as it applies to any part of the United
Kingdom to which the requirement does not apply.

(4) 5The reference in subsection (2) to an enactment does not include a
reference to an enactment in so far as it imposes a requirement of that
kind which applies—

(a) only to work or practice of a particular kind, and

(b) only when work or practice of that kind is engaged in for
10particular purposes.

(5) In subsections (2) to (4), “enactment” means an enactment contained in,
or in an instrument made under—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) 15an Act or Measure of the National Assembly for Wales, or

(d) Northern Ireland legislation.

(6) “Unregulated health professional” means a member of a profession—

(a) which is concerned with the physical or mental health of
individuals, but

(b) 20to which section 60(2) of the Health Act 1999 does not apply.

(7) “Unregulated health care worker” means a person engaged in work
which—

(a) involves the provision of health care, but

(b) is not work which may be engaged in only by members of a
25profession.

(8) In subsections (2) and (7), “health care” includes—

(a) all forms of health care for individuals, whether relating to
physical or mental health, and

(b) procedures that are similar to forms of medical or surgical care
30but are not provided in connection with a medical condition.

(9) “Unregulated social care worker in England” means a person engaged
in social care work in England within the meaning of section 60 of the
Health Act 1999.

(10) But a person is not to be regarded as being (or having been) engaged in
35work as an unregulated social care worker merely because the person
is (or has been) participating in a course of the description given in
subsection (2ZC)(o) of that section (social work courses).

(11) “The social work profession in England” has the meaning given in that
section.

25F 40Establishment of voluntary register: impact assessment

(1) Before establishing a register under section 25D, a regulatory body—

(a) must make an assessment of the likely impact of doing so, and

(b) must consult such persons as it considers appropriate.

Health and Social Care BillPage 221

(2) In performing the duty under subsection (1)(a), the body must have
regard to such guidance relating to the preparation of impact
assessments as it considers appropriate.

(3) An assessment under this section must, in particular, include an
5assessment of the likely impact of establishing the register on—

(a) persons who would be eligible for inclusion in the register;

(b) persons who employ persons who would be eligible for
inclusion in the register;

(c) users of health care, users of social care in England and users of
10social work services in England.

(4) A regulatory body must publish any assessment it makes under this
section.

(5) In deciding whether to establish a register under section 25D, a
regulatory body must have regard to the assessment it made under this
15section in relation to the register.

232 Accreditation of voluntary registers

(1) After section 25F of the National Health Service Reform and Health Care
Professions Act 2002 insert—

25G Power of the Authority to accredit voluntary registers

(1) 20Where a regulatory body or other person maintains a voluntary
register, the Authority may, on an application by the body or other
person, take such steps as it considers appropriate for the purpose of
establishing whether the register meets such criteria as the Authority
may from time to time set (“accreditation criteria”).

(2) 25Accreditation criteria may, in particular, relate to—

(a) the provision to the Authority of information in connection
with the establishment, operation or maintenance of register;

(b) publication of the names of persons included in the register or
who have been removed from the register (whether voluntarily
30or otherwise);

(c) the establishment or operation of a procedure for appeals from
decisions relating to inclusion in or removal from the register.

(3) If the Authority is satisfied that a voluntary register meets the
accreditation criteria, it may accredit the register.

(4) 35The Authority may carry out periodic reviews of the operation of
registers accredited under this section for the purpose of establishing
whether they continue to meet the accreditation criteria.

(5) If, on a review under subsection (4), the Authority is satisfied that a
voluntary register no longer meets the accreditation criteria, the
40Authority may remove or suspend, or impose conditions on, the
accreditation of the register.

(6) The Authority may refuse to accredit a register, or to continue to
accredit a register, unless the person who maintains the register pays a
fee of such amount as the Authority may determine.

(7) 45The Authority must publish such accreditation criteria as it sets.

Health and Social Care BillPage 222

(8) The Authority may publish a list of registers accredited under this
section.

(9) “Voluntary register” has the meaning given in section 25E.

25H Accreditation of voluntary register: impact assessment

(1) 5Before accrediting a register under section 25G, the Authority—

(a) must make an assessment of the likely impact of doing so, and

(b) must consult such persons as it considers appropriate.

(2) For that purpose, the Authority must have regard to such guidance
relating to the preparation of impact assessments as it considers
10appropriate.

(3) An assessment under this section must, in particular, include an
assessment of the likely impact of accrediting the register on—

(a) persons who are, or are eligible to be, included in the register;

(b) persons who employ persons who are, or are eligible to be,
15included in the register;

(c) users of health care, users of social care in England and users of
social work services in England.

(4) For the purposes of subsection (3), the Authority may request the
person who maintains the register to provide it with such information
20as it specifies; and if the person refuses to comply with the request, the
Authority may refuse to accredit the register.

(5) The Authority may publish any assessment it makes under this section.

(6) In deciding whether to accredit a register under section 25G, the
Authority must have regard to its assessment under this section in
25relation to the register.

25I Functions of the Authority in relation to accredited voluntary registers

(1) The Authority has the following functions—

(a) to promote the interests of users of health care, users of social
care in England, users of social work services in England and
30other members of the public in relation to the performance of
voluntary registration functions,

(b) to promote best practice in the performance of voluntary
registration functions, and

(c) to formulate principles of good governance in the performance
35of voluntary registration functions and to encourage persons
who maintain or operate accredited voluntary registers to
conform to those principles.

(2) In this section—

(a) a reference to the performance of voluntary registration
40functions is a reference to the maintenance or operation of an
accredited voluntary register, and

(b) “accredited voluntary register” means a register accredited
under section 25G”.

(2) In section 26 of that Act (general powers and duties of the Authority), after

Health and Social Care BillPage 223

subsection (2) insert—

(2A) A reference in subsection (2) to a regulatory body includes a reference
to a person other than a regulatory body who has voluntary
registration functions; and for that purpose, the only functions that
5person has are the person’s voluntary registration functions.

(3) After subsection (3) of that section insert—

(3A) A reference in subsection (3) to a regulatory body includes a reference
to a person other than a regulatory body in so far as that person has
voluntary registration functions.

(4) 10After subsection (4) of that section insert—

(4A) For the purposes of paragraph (c) of subsection (4), the reference in that
subsection to subsection (3) includes a reference to subsection (3) as
construed in accordance with subsection (3A).

(5) After subsection (12) of that section insert—

(13) 15In this section, “voluntary registration functions” is to be construed in
accordance with section 25I.

(6) In section 26A of that Act (powers of Secretary of State and devolved
authorities to request advice etc.), after subsection (1A) (inserted by section
226(3)), insert—

(1B) 20The Secretary of State may request the Authority for advice on any
matter connected with accreditation of registers under section 25G; and
the Authority must comply with such a request.

(1C) The Welsh Ministers, the Scottish Ministers or the relevant Northern
Ireland department may request the Authority for advice on any matter
25connected with accreditation of registers under section 25G other than
accreditation of registers referred to in subsection (1D); and the
Authority must comply with such a request.

(1D) The registers are registers of persons who are or have been—

(a) unregulated social care workers in England,

(b) 30participating in studies for the purpose of becoming a member
of the social work profession in England;

(c) participating in studies for the purpose of becoming an
unregulated social care worker in England.

(1E) In subsection (1D), “the social work profession in England” and
35“unregulated social care worker in England” each have the meaning
given in section 25E.

(7) In section 26B of that Act (duty of the Authority to inform and consult the
public), after subsection (1) insert—

(1A) The references in subsection (1) to the Authority’s functions do not
40include a reference to its accreditation functions.

(1B) For the purpose of ensuring that members of the public are informed
about the exercise by the Authority of its accreditation functions, the
Authority may publish or provide in such manner as it thinks fit
information about the exercise of those functions.

Health and Social Care BillPage 224

(1C) For the purposes of this section, the Authority’s accreditation functions
are—

(a) its functions under sections 25G to 25I,

(b) its functions under section 26 that relate to the performance of
5voluntary registration functions (within the meaning given by
section 25I), and

(c) its function under section 26A(1B).

(8) In subsection (2) of that section, after “subsection (1)” insert “or (1B)”.

(9) At the end of subsection (4) of that section insert “(other than its accreditation
10functions)”.

Consequential provision etc.

233 Consequential provisions and savings, etc.

(1) Parts 1 to 3 of Schedule 16 (which contain minor and consequential
amendments and savings relating to the preceding provisions of this Part)
15have effect.

(2) The Privy Council may by order make transitional, transitory or saving
provision in connection with the commencement of the preceding provisions
of this Part.

(3) The quorum for the exercise of the power under subsection (2) is two.

(4) 20Anything done by the Privy Council under subsection (2) is sufficiently
signified by an instrument signed by the Clerk of the Council.

(5) In section 38 of the National Health Service Reform and Health Care
Professions Act 2002 (regulations and orders), after subsection (4) insert—

(4A) The quorum for the exercise by the Privy Council of the power under
25section 25A or 28 or paragraph 6 of Schedule 7 is two; and anything
done by the Privy Council under either of those sections or that
paragraph is sufficiently signified by an instrument signed by the Clerk
of the Council.

(6) The amendments made by this Part to an Order in Council under section 60 of
30the Health Act 1999 do not affect the power to make a further Order in Council
under that section amending or revoking provision made by those
amendments.

The Office of the Health Professions Adjudicator

234 Abolition of the Office of the Health Professions Adjudicator

(1) 35The Office of the Health Professions Adjudicator (“the OHPA”) is abolished.

(2) In Part 2 of the Health and Social Care Act 2008 (regulation of health
professions etc.), omit sections 98 to 110 and Schedules 6 and 7 (establishment
etc. of the OHPA).

(3) All property, rights and liabilities to which the OHPA is entitled or subject
40immediately before the commencement of subsection (1) (including rights and
liabilities relating to staff) are transferred to the Secretary of State.

Health and Social Care BillPage 225

(4) Part 4 of Schedule 16 (which contains consequential amendments and savings
in relation to the OHPA) has effect.

Part 8 The National Institute for Health and Care Excellence

5Establishment and general duties

235 The National Institute for Health and Care Excellence

(1) There is to be a body corporate known as the National Institute for Health and
Care Excellence (referred to in this Part as “NICE”).

(2) Schedule 17 (which makes further provision about NICE) has effect.

236 10General duties

(1) In exercising its functions NICE must have regard to—

(a) the broad balance between the benefits and costs of the provision of
health services or of social care in England,

(b) the degree of need of persons for health services or social care in
15England, and

(c) the desirability of promoting innovation in the provision of health
services or of social care in England.

(2) NICE must exercise its functions effectively, efficiently and economically.

(3) In this Part—

  • 20“health services” means services which must or may be provided as part
    of the health service in England;

  • “social care” includes all forms of personal care and other practical
    assistance provided for individuals who by reason of age, illness,
    disability, pregnancy, childbirth, dependence on alcohol or drugs, or
    25any other similar circumstances, are in need of such care or other
    assistance.

Functions: quality standards

237 Quality standards

(1) The relevant commissioner may direct NICE to prepare statements of
30standards in relation to the provision of—

(a) NHS services,

(b) public health services, or

(c) social care in England.

(2) In this Part such a statement is referred to as a “quality standard”.

(3) 35In preparing a quality standard NICE must consult the public and, for that
purpose, may publish drafts of the standard.

(4) NICE must keep a quality standard under review and may revise it as it
considers appropriate.

Health and Social Care BillPage 226

(5) A quality standard (and any revised standard)—

(a) must be endorsed by the relevant commissioner, and

(b) must not be published by NICE unless the relevant commissioner so
requires.

(6) 5The relevant commissioner may require NICE—

(a) to publish the standard (or revised standard) generally or to persons
specified by the relevant commissioner, and

(b) to do so in the manner specified by the relevant commissioner.

(7) NICE must—

(a) 10establish a procedure for the preparation of quality standards, and

(b) consult such persons as it considers appropriate in establishing that
procedure.

(8) Subsection (9) applies in a case where the Secretary of State and the Board each
has power under this section to give NICE a direction to prepare a quality
15standard in relation to the same matter or connected matters.

(9) In such a case—

(a) the Secretary of State and the Board may issue a joint direction under
subsection (1), and

(b) if they do so, NICE must prepare a joint quality standard in respect of
20the matter or matters concerned.

(10) In this section “the relevant commissioner”—

(a) in relation to a quality standard in relation to the provision of NHS
services, means the Board, and

(b) in relation to a quality standard in relation to the provision of public
25health services or of social care in England, means the Secretary of
State,

and a reference to the relevant commissioner in relation to a joint quality
standard is a reference to both the Secretary of State and the Board.

(11) In this Part—

  • 30NHS services” means services the provision of which is arranged by the
    Board or a commissioning consortium under the National Health
    Service Act 2006 (including pursuant to arrangements made under
    section 7A or 12 of that Act);

  • “public health services” means services provided pursuant to the
    35functions of—

    (a)

    the Secretary of State under section 2A or 2B of, or paragraph
    7C, 8 or 12 of Schedule 1 to, that Act, or

    (b)

    a local authority under section 2B or 111 of, or paragraphs 1 to
    7B or 13 of Schedule 1 to, that Act.

238 40Supply of quality standards to other persons

(1) Regulations may confer powers on NICE in relation to the supply by NICE of
quality standards to—

(a) devolved authorities, and

(b) other persons (whether or not in the United Kingdom).

(2) 45The regulations may in particular—

Health and Social Care BillPage 227

(a) confer power on NICE to make such adjustments as NICE considers
appropriate to a quality standard for the purposes of supplying it as
mentioned in subsection (1), and

(b) provide for the imposition by NICE of charges for or in connection with
5the supply of a quality standard as so mentioned.

(3) Provision made under subsection (2)(b) may include provision for charges to
be calculated on the basis NICE considers to be the appropriate commercial
basis.

(4) In this section “devolved authority” means—

(a) 10the Scottish Ministers,

(b) the Welsh Ministers, and

(c) the Department of Health, Social Services and Public Safety in
Northern Ireland.

239 Advice or guidance to the Secretary of State or the Board

(1) 15NICE must give advice or guidance to the Secretary of State or the Board on
any quality matter referred to it by the Secretary of State or (as the case may be)
the Board.

(2) “Quality matter”—

(a) in relation to the Secretary of State, means any matter in relation to
20which the Secretary of State has the power to direct NICE to prepare a
quality standard, and

(b) in relation to the Board, means any matter in relation to which the
Board has the power to direct NICE to prepare a quality standard.

Functions: advice, guidance etc.

240 25Advice, guidance, information and recommendations

(1) Regulations may confer functions on NICE in relation to the giving of advice
or guidance, provision of information or making of recommendations about
any matter concerning or connected with the provision of—

(a) NHS services,

(b) 30public health services, or

(c) social care in England.

(2) The regulations may provide that a function conferred under subsection
(1)(a)

(a) is only exercisable on the direction of the Secretary of State or the Board;

(b) 35is subject to directions given by the Secretary of State or (as the case
may be) the Board about NICE’s exercise of the function.

(3) The regulations may provide that a function conferred under subsection (1)(b)
or (c)

(a) is only exercisable on the direction of the Secretary of State;

(b) 40is subject to directions given by the Secretary of State about NICE’s
exercise of the function.

Health and Social Care BillPage 228

(4) Provision made under subsection (2)(b) or (3)(b) must not permit a direction to
be given about the substance of advice, guidance or recommendations of
NICE.

(5) The regulations may make provision about—

(a) 5the persons who may request or require that advice, guidance,
information or recommendations be given, provided or (as the case
may be) made by NICE,

(b) the publication or other dissemination of the advice, guidance,
information or recommendations (whether by NICE, the Secretary of
10State or the Board), and

(c) the imposition by NICE of charges for or in connection with the giving
of advice or guidance, provision of information or making of
recommendations.

(6) Provision made under subsection (5)(c) may include provision for charges to
15be calculated on the basis NICE considers to be the appropriate commercial
basis.

(7) The regulations must make provision about—

(a) the establishment by NICE of procedures for the giving of advice or
guidance, provision of information or making of recommendations
20under the regulations, and

(b) consultation by NICE in establishing the procedures.

(8) The regulations may make provision requiring specified health or social care
bodies, or health or social care bodies of a specified description, to—

(a) have regard to specified advice or guidance, or advice or guidance of a
25specified description, given by NICE pursuant to the regulations;

(b) comply with specified recommendations, or recommendations of a
specified description, made by NICE pursuant to the regulations.

(9) Provision made under subsection (8) may require a specified body, or bodies
of a specified description, to have regard to advice or guidance or to comply
30with recommendations—

(a) generally in the exercise of functions, or

(b) in the exercise of specified functions or functions of a specified
description.

(10) In this section—

  • 35“health or social care body” means any public body other than a local
    authority exercising functions in connection with the provision of
    health services or of social care in England;

  • “local authority” means—

    (a)

    a county council in England;

    (b)

    40a district council in England, other than a council for a district
    in a county for which there is a county council;

    (c)

    a London borough council;

    (d)

    the Council of the Isles of Scilly;

    (e)

    the Common Council of the City of London;

  • 45‘“public body” means a body or other person whose functions—

    (a)

    are of a public nature, or

    (b)

    include functions of that nature,

    Health and Social Care BillPage 229

    but, in the latter case, the body or person is a public body to the extent
    only of those functions;

  • “specified” means specified in the regulations.

241 NICE recommendations: appeals

(1) 5Regulations under section 240 may make provision about appeals against
recommendations made by NICE pursuant to the regulations.

(2) The regulations may in particular include provision about—

(a) the types of recommendations in relation to which an appeal may be
brought,

(b) 10the persons who may bring an appeal,

(c) the grounds on which an appeal may be brought, and

(d) the persons by whom an appeal is to be heard.

242 Training

(1) Regulations may confer functions on NICE in relation to providing, or
15facilitating the provision of, training in connection with any matter concerning
or connected with the provision of—

(a) NHS services,

(b) public health services, or

(c) social care in England.

(2) 20The regulations may provide that a function conferred under subsection
(1)(a)

(a) is only exercisable on the direction of the Board;

(b) is subject to directions given by the Board about NICE’s exercise of the
function.

(3) 25The regulations may provide that a function conferred under subsection (1)(b)
or (c)

(a) is only exercisable on the direction of the Secretary of State;

(b) is subject to directions given by the Secretary of State about NICE’s
exercise of the function.

(4) 30The regulations may provide for the imposition by NICE of charges for or in
connection with the provision, or the facilitation of the provision, of training.

(5) Provision made under subsection (4) may include provision for charges to be
calculated on the basis NICE considers to be the appropriate commercial basis.

243 Advisory services

(1) 35Regulations may confer functions on NICE in relation to the giving of advice
to persons (whether or not in the United Kingdom) in relation to any matter
concerning or connected with—

(a) the provision of health care,

(b) the protection or improvement of public health, or

(c) 40the provision of social care.

(2) The regulations may make provision about the imposition of charges by NICE
for or in connection with the giving of such advice.