Health and Social Care Bill (HC Bill 221)

Health and Social Care BillPage 10

consortium has responsibility and who appear to it to have a
physical impairment”, and

(c) after that sub-paragraph insert—

(2) Subsections (1A), (1B) and (1D) of section 3 apply for the
5purposes of sub-paragraph (1) as they apply for the purposes
of that section.

(12) In paragraph 10—

(a) in sub-paragraph (1)(a) after “provided” insert “in pursuance of
arrangements made”,

(b) 10in sub-paragraph (2) —

(i) for “The Secretary of State may” substitute “The commissioning
consortium may make arrangements for”,

(ii) in paragraph (a) for “adapt” substitute “the adaptation of”,

(iii) in paragraph (b) for “maintain and repair” substitute “the
15maintenance and repair of”,

(iv) in paragraph (c) for “take out” substitute “the taking out of”,

(v) in that paragraph for “pay” substitute “the payment of”,

(vi) in paragraph (d) for “provide” (in each place it occurs)
substitute “the provision of”, and

(vii) 20in that paragraph for “execute” substitute “the execution of”,

(c) in sub-paragraph (3) for “The Secretary of State” substitute “A
commissioning consortium”, and

(d) in sub-paragraph (5) for “the Secretary of State” substitute “the
commissioning consortium”.

(13) 25In paragraph 12 (provision of a microbiological service)—

(a) in sub-paragraph (1)—

(i) omit paragraph (a) and the word “and” immediately following
it,

(ii) in paragraph (b) omit “other”, and

(iii) 30in that paragraph for “that service” substitute “a
microbiological service provided under section 2A”, and

(b) omit sub-paragraph (2).

(14) For paragraph 13 and the cross-heading preceding it substitute—

Powers in relation to research etc.

13 (1) 35The Secretary of State, the Board or a commissioning consortium
may conduct, commission or assist the conduct of research into—

(a) any matters relating to the causation, prevention, diagnosis
or treatment of illness, and

(b) any such other matters connected with any service provided
40under this Act as the Secretary of State, the Board or the
consortium (as the case may be) considers appropriate.

(2) A local authority may conduct, commission or assist the conduct of
research for any purpose connected with the exercise of its functions
in relation to the health service.

Health and Social Care BillPage 11

(3) The Secretary of State, the Board, a commissioning consortium or a
local authority may for any purpose connected with the exercise of
its functions in relation to the health service—

(a) obtain and analyse data or other information;

(b) 5obtain advice from persons with appropriate professional
expertise.

(4) The power under sub-paragraph (1) or (2) to assist any person to
conduct research includes power to do so by providing financial
assistance or making the services of any person or other resources
10available.

(5) In this paragraph, “local authority” has the same meaning as in
section 2B.

15 Regulations as to the exercise by local authorities of certain public health
functions

(1) 15After section 6B of the National Health Service Act 2006 insert—

Regulations as to the exercise of functions
6C Regulations as to the exercise by local authorities of certain public
health functions

(1) Regulations may require a local authority to exercise any of the public
20health functions of the Secretary of State (so far as relating to the health
of the public in the authority’s area) by taking such steps as may be
prescribed.

(2) Regulations may require a local authority to exercise its public health
functions by taking such steps as may be prescribed.

(3) 25The making of regulations under subsection (1) does not prevent the
Secretary of State from taking any step that a local authority is required
to take under the regulations.

(4) In this section, “local authority” has the same meaning as in section 2B.

(2) In section 272 of that Act (orders, regulations, rules and directions), in
30subsection (6) before paragraph (za) insert—

(zza) regulations under section 6C(1) or (2),.

16 Regulations relating to EU obligations

After section 6C of the National Health Service Act 2006 insert—

6D Regulations relating to EU obligations

(1) 35Regulations may require the Board or a commissioning consortium to
exercise a specified EU health function.

(2) In subsection (1)—

(a) EU health function” means any function exercisable by the
Secretary of State for the purpose of implementing EU
40obligations that concern, or are connected to, the health service,

Health and Social Care BillPage 12

other than a function of making subordinate legislation (within
the meaning of the Interpretation Act 1978), and

(b) “specified” means specified in the regulations.

(3) The Secretary of State may give directions to the Board or a
5commissioning consortium about its exercise of any of its functions
under regulations under subsection (1).

(4) The Secretary of State may, for the purpose of securing compliance by
the United Kingdom with EU obligations, give directions to the Board
or a commissioning consortium about the exercise of any of its
10functions.

17 Regulations as to the exercise of functions by the Board or consortia

(1) After section 6D of the National Health Service Act 2006 insert—

6E Regulations as to the exercise of functions by the Board or consortia

(1) Regulations may impose requirements (to be known as “standing
15rules”) in accordance with this section on the Board or on
commissioning consortia.

(2) The regulations may, in relation to the commissioning functions of the
Board or consortia, make provision—

(a) requiring the Board or consortia to arrange for specified
20treatments or other specified services to be provided or to be
provided in a specified manner or within a specified period;

(b) as to the arrangements that the Board or consortia must make
for the purpose of making decisions as to—

(i) the treatments or other services that are to be provided;

(ii) 25the manner in which or period within which specified
treatments or other specified services are to be provided;

(iii) the persons to whom specified treatments or other
specified services are to be provided;

(c) as to the arrangements that the Board or consortia must make
30for enabling persons to whom specified treatments or other
specified services are to be provided to make choices with
respect to specified aspects of them.

(3) Regulations by virtue of paragraph (b) of subsection (2) may, in
particular, make provision—

(a) 35requiring the Board or a consortium to take specified steps
before making decisions as to the matters mentioned in that
paragraph;

(b) as to reviews of, or appeals from, such decisions.

(4) The regulations may—

(a) 40specify matters for which provision must be made in
commissioning contracts entered into by the Board or consortia;

(b) require the Board to draft terms and conditions making
provision for those matters;

(c) require the Board or consortia to incorporate the terms and
45conditions drafted by virtue of paragraph (b) in commissioning

Health and Social Care BillPage 13

contracts entered into by the Board or (as the case may be)
consortia.

(5) The regulations must—

(a) require the Board to draft such terms and conditions as the
5Board considers are, or might be, appropriate for inclusion in
commissioning contracts entered into by the Board or consortia
(other than terms and conditions that the Board is required to
draft by virtue of subsection (4)(a));

(b) authorise the Board to require consortia to incorporate terms
10and conditions prepared by virtue of paragraph (a) in their
commissioning contracts;

(c) authorise the Board to draft model commissioning contracts.

(6) The regulations may require the Board to consult prescribed persons
before exercising any of its functions by virtue of subsection (4)(b) or
15(5).

(7) The regulations may require the Board or consortia in the exercise of
any of its or their functions—

(a) to provide information of a specified description to specified
persons in a specified manner;

(b) 20to act in a specified manner for the purpose of securing
compliance with EU obligations;

(c) to do such other things as the Secretary of State considers
necessary for the purposes of the health service.

(8) The regulations may not impose a requirement on only one
25consortium.

(9) If regulations under this section are made so as to come into force on a
day other than 1 April, the Secretary of State must—

(a) publish a statement explaining the reasons for making the
regulations so as to come into force on such a day, and

(b) 30lay the statement before Parliament.

(10) In this section—

(a) “commissioning contracts”, in relation to the Board or
commissioning consortia, means contracts entered into by the
Board or (as the case may be) consortia in the exercise of its or
35their commissioning functions;

(b) “commissioning functions”, in relation to the Board or
commissioning consortia, means the functions of the Board or
(as the case may be) consortia in arranging for the provision of
services as part of the health service;

(c) 40“specified” means specified in the regulations.

(2) In section 272 of that Act (orders, regulations, rules and directions), in
subsection (6) after paragraph (zza) insert—

(zzb) regulations under section 6E, except where they do not include
provision by virtue of subsection (7)(c) of that section,.

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18 Functions of Special Health Authorities

(1) Section 7 of the National Health Service Act 2006 (distribution of health service
functions) is amended as follows.

(2) For subsection (1) substitute—

(1) 5The Secretary of State may direct a Special Health Authority to exercise
any functions of the Secretary of State or any other person which relate
to the health service in England and are specified in the direction.

(1A) Before exercising the power in subsection (1) in relation to a function of
a person other than the Secretary of State, the Secretary of State must
10consult that person.

(1B) Regulations may provide that a Special Health Authority specified in
the regulations is to have such additional functions in relation to the
health service in England as may be so specified.

(3) Omit subsections (2) and (3).

(4) 15For the heading to that section, and for the cross-heading preceding it,
substitute “Functions of Special Health Authorities”.

(5) In section 272 of that Act (orders, regulations, rules and directions), in
subsection (6) after paragraph (zzb) insert—

(zzc) regulations under section 7(1B),.

19 20Exercise of public health functions of the Secretary of State

After section 7 of the National Health Service Act 2006 insert—

Exercise of Secretary of State’s public health functions
7A Exercise of Secretary of State’s public health functions

(1) The Secretary of State may arrange for a body mentioned in subsection
25(2) to exercise any of the public health functions of the Secretary of
State.

(2) Those bodies are—

(a) the Board;

(b) a commissioning consortium;

(c) 30a local authority (within the meaning of section 2B).

(3) The power conferred by subsection (1) includes power to arrange for
such a body to exercise any functions of the Secretary of State that are
exercisable in connection with those functions (including the powers
conferred by section 12).

(4) 35Where the Secretary of State arranges (under subsection (1)) for the
Board to exercise a function, the Board may arrange for a
commissioning consortium to exercise that function.

(5) Powers under this section may be exercised on such terms as may be
agreed, including terms as to payment.

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Further provision about the Board

20 The NHS Commissioning Board: further provision

(1) In Part 2 of the National Health Service Act 2006 (health service bodies), before
Chapter 1 insert—

CHAPTER A1 5The National Health Service Commissioning Board
Secretary of State’s mandate to the Board
13A Mandate to Board

(1) Before the start of each financial year, the Secretary of State must
publish and lay before Parliament a document to be known as “the
10mandate”.

(2) The Secretary of State must specify in the mandate—

(a) the objectives that the Secretary of State considers the Board
should seek to achieve in the exercise of its functions during
that financial year and such subsequent financial years as the
15Secretary of State considers appropriate, and

(b) any requirements that the Secretary of State considers it
necessary to impose on the Board for the purpose of ensuring
that it achieves those objectives.

(3) The Secretary of State must also specify in the mandate the amounts
20that the Secretary of State has decided to specify in relation to the
financial year for the purposes of section 223D(2) and (3) (limits on
capital and revenue resource use).

(4) The Secretary of State may specify in the mandate any proposals that
the Secretary of State has as to the amounts that the Secretary of State
25will specify in relation to subsequent financial years for the purposes of
section 223D(2) and (3).

(5) The Secretary of State may also specify in the mandate the matters by
reference to which the Secretary of State proposes to assess the Board’s
performance in relation to the first financial year to which the mandate
30relates.

(6) The Secretary of State may not specify in the mandate an objective or
requirement about the exercise of the Board’s functions in relation to
only one commissioning consortium.

(7) The Board must—

(a) 35seek to achieve the objectives specified in the mandate, and

(b) comply with any requirements so specified.

(8) Before specifying any objectives or requirements in the mandate, the
Secretary of State must consult—

(a) the Board,

(b) 40the Healthwatch England committee of the Care Quality
Commission, and

Health and Social Care BillPage 16

(c) such other persons as the Secretary of State considers
appropriate.

13B The mandate: supplemental provision

(1) The Secretary of State must keep the Board’s performance in achieving
5any objectives or requirements specified in the mandate under review.

(2) If the Secretary of State varies the amount specified for the purposes of
section 223D(2) or (3), the Secretary of State must revise the mandate
accordingly.

(3) The Secretary of State may make any other revision to the mandate only
10if—

(a) the Board agrees to the revision,

(b) a parliamentary general election takes place, or

(c) the Secretary of State considers that there are exceptional
circumstances that make the revision necessary.

(4) 15If the Secretary of State revises the mandate, the Secretary of State
must—

(a) publish the mandate (as so revised), and

(b) lay it before Parliament, together with an explanation of the
reasons for making the revision.

20General duties of the Board
13C Duty to promote NHS Constitution

(1) The Board must, in the exercise of its functions—

(a) act with a view to securing that health services are provided in
a way which promotes the NHS Constitution, and

(b) 25promote awareness of the NHS Constitution among patients,
staff and members of the public.

(2) In this section—

  • “health services” means services provided as part of the health
    service;

  • 30“patients” and “staff” have the same meanings as in Chapter 1 of
    Part 1 of the Health Act 2009 (see section 3(7) of that Act).

13D Duty as to effectiveness, efficiency etc.

The Board must exercise its functions effectively, efficiently and
economically.

13E 35Duty as to improvement in quality of services

(1) The Board must exercise its functions with a view to securing
continuous improvement in the quality of services provided to
individuals for or in connection with—

(a) the prevention, diagnosis or treatment of illness, or

(b) 40the protection or improvement of public health.

(2) In discharging its duty under subsection (1), the Board must, in
particular, act with a view to securing continuous improvement in the
outcomes that are achieved from the provision of the services.

Health and Social Care BillPage 17

(3) The outcomes relevant for the purposes of subsection (2) include, in
particular, outcomes which show—

(a) the effectiveness of the services,

(b) the safety of the services, and

(c) 5the quality of the experience undergone by patients.

(4) In discharging its duty under subsection (1), the Board must have
regard to—

(a) any document published by the Secretary of State for the
purposes of this section, and

(b) 10the quality standards prepared by NICE under section 237 of
the Health and Social Care Act 2011.

13F Duty as to promoting autonomy

In exercising its functions, the Board must, so far as is consistent with
the interests of the health service, act with a view to securing—

(a) 15that any other person exercising functions in relation to the
health service or providing services for its purposes is free to
exercise those functions or provide those services in the manner
it considers most appropriate, and

(b) that unnecessary burdens are not imposed on any such person.

13G 20Duty as to reducing inequalities

(1) The Board must, in the exercise of its functions, have regard to the need
to—

(a) reduce inequalities between patients with respect to their ability
to access health services;

(b) 25reduce inequalities between patients with respect to the
outcomes achieved for them by the provision of health services.

(2) In this section, “health services” means services provided as part of the
health service.

13H Duty to promote involvement of each patient

(1) 30The Board must, in the exercise of its functions, promote the
involvement of patients, and their carers and representatives (if any), in
decisions about the provision of health services to the patients.

(2) In this section, “health services” has the same meaning as in section
13G.

13I 35Duty as to patient choice

(1) The Board must, in the exercise of its functions, act with a view to
enabling patients to make choices with respect to aspects of health
services provided to them.

(2) In this section, “health services” has the same meaning as in section
4013G.

13J Duty to obtain appropriate advice

The Board must obtain advice appropriate for enabling it effectively to
discharge its functions from persons who (taken together) have a broad
range of professional expertise in—

Health and Social Care BillPage 18

(a) the prevention, diagnosis or treatment of illness, and

(b) the protection or improvement of public health.

13K Duty to promote innovation

(1) The Board must, in the exercise of its functions, promote innovation in
5the provision of health services (including innovation in the
arrangements made for their provision).

(2) The Board may make payments as prizes to promote innovation in the
provision of health services.

(3) A prize may relate to—

(a) 10work at any stage of innovation (including research);

(b) work done at any time (including work before the
commencement of section 20 of the Health and Social Care Act
2011).

(4) In this section “health services” means services provided as part of the
15health service.

13L Duty in respect of research

The Board must, in the exercise of its functions, have regard to the need
to promote—

(a) research on matters relevant to the health service, and

(b) 20the use in the health service of evidence obtained from research.

13M Duty as to promoting integration

(1) The Board must exercise its functions with a view to securing that
health services are provided in an integrated way where it considers
that this would—

(a) 25improve the quality of those services (including the outcomes
that are achieved from their provision),

(b) reduce inequalities between persons with respect to their ability
to access those services, or

(c) reduce inequalities between persons with respect to the
30outcomes achieved for them by the provision of those services.

(2) The Board must exercise its functions with a view to securing that the
provision of health services is integrated with the provision of health-
related services or social care services where it considers that this
would—

(a) 35improve the quality of the health services (including the
outcomes that are achieved from the provision of those
services),

(b) reduce inequalities between persons with respect to their ability
to access those services, or

(c) 40reduce inequalities between persons with respect to the
outcomes achieved for them by the provision of those services.

(3) The duty imposed by subsection (1) includes, in particular, a duty to
encourage commissioning consortia to enter into arrangements with
local authorities in pursuance of regulations under section 75.

(4) 45In this section—

    Health and Social Care BillPage 19

  • “health services” means services provided as part of the health
    service;

  • “health-related services” means services that may have an effect
    on the health of individuals but are not health services or social
    5care services;

  • “social care services” means services that are provided in
    pursuance of the social services functions of local authorities
    (within the meaning of the Local Authority Social Services Act
    1970).

13N 10Duty to have regard to impact on services in certain areas

(1) In making commissioning decisions, the Board must have regard to the
likely impact of those decisions on the provision of health services to
persons who reside in an area of Wales or Scotland that is close to the
border with England.

(2) 15In this section—

  • “commissioning decisions”, in relation to the Board, means
    decisions about the carrying out of its functions in arranging for
    the provision of health services;

  • “health services” means services that are (or are to be) provided as
    20part of the health service.

13O Duty as respects variation in provision of health services

The Board must not exercise its functions for the purpose of causing a
variation in the proportion of services provided as part of the health
service that is provided by persons of a particular description if that
25description is by reference to—

(a) whether the persons in question are in the public or (as the case
may be) private sector, or

(b) some other aspect of their status.

Public involvement
13P 30Public involvement and consultation by the Board

(1) This section applies in relation to any health services which are, or are
to be, provided pursuant to arrangements made by the Board
(“commissioning arrangements”).

(2) The Board must make arrangements to secure that individuals to
35whom the services are being or may be provided are involved (whether
by being consulted or provided with information or in other ways)—

(a) in the planning of the commissioning arrangements by the
Board,

(b) in the development and consideration of proposals by the
40Board for changes in the commissioning arrangements where
the implementation of the proposals would have an impact on
the manner in which the services are delivered to the
individuals or the range of health services available to them,
and

(c) 45in decisions of the Board affecting the operation of the
commissioning arrangements where the implementation of the
decisions would (if made) have such an impact.