Health and Social Care Bill (HC Bill 221)

(c) in the Care Standards Act 2000, in Schedule 4, omit paragraph 9(3),

(d) in the Health and Social Care (Community Health and Standards) Act
2003, in Schedule 4, omit paragraphs 53(a) and 54,

(e) in the Domestic Violence, Crime and Victims Act 2004—

(i) 5omit sections 37A(5), 38A(3), 43A(5) and 44A(3),

(ii) in section 37A(7)(a), omit “, (5)”, and

(iii) in section 43A(7), omit “, (5)”, and

(f) in the Mental Health Act 2007, in Schedule 3, omit paragraphs 10(5) and
(6) and 11(3) and (4).

36 10After-care

(1) Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.

(2) In subsection (2)—

(a) after “duty of the” insert “commissioning consortium or”,

(b) omit “Primary Care Trust or” in each place it appears,

(c) 15for “and of the local social services authority” substitute “, and it shall
be the duty of the local social services authority,”,

(d) for “such time as the” substitute “such time as (in relation to England)
the commissioning consortium or”,

(e) before “Local Health Board and the” insert “local social services
20authority is satisfied that the person concerned is no longer in need of
such services or (in relation to Wales) the”,

(f) for “are satisfied that the person concerned is no longer in need of such
services” substitute “are so satisfied”, and

(g) for “they” substitute “it (in relation to England) or they (in relation to
25Wales)”.

(3) In subsection (2C)—

(a) in paragraph (a), omit “or section 12A(4) of the National Health Service
Act 2006”, and

(b) after paragraph (b) insert “;

30but see also subsection (2F)(b).”

(4) After subsection (2C) insert—

“(2D) Subsection (2) above, in its application to the commissioning
consortium, has effect as if—

(a) for “to provide” there were substituted “to arrange for the
35provision of”; and

(b) the words “, in co-operation with relevant voluntary agencies,”
were omitted.

(2E) The duty imposed on the commissioning consortium by subsection (2)
above applies only to services for the provision of which the
40consortium has—

(a) a duty to arrange under section 3 of the National Health Service
Act 2006; or

(b) a power to arrange under section 3A of that Act.

(2F) The duty imposed on the commissioning consortium by subsection (2)
45above is to be regarded for all purposes as a duty imposed on it by
section 3 of that Act; and accordingly—

(a) references in any provision made by or under any Act to the
provision of services under that section or that Act are to be
read as including a reference to the provision of services under
this section; and

(b) 5references in any provision made by or under this or any other
Act to the provision of services under this section are to be read
in the light of this subsection.

(2G) The Secretary of State may by regulations provide that the duty
imposed on the commissioning consortium by subsection (2) above is,
10in the circumstances or to the extent prescribed by the regulations, to be
imposed instead on another commissioning consortium or the National
Health Service Commissioning Board.

(2H) Where regulations under subsection (2G) above provide that the duty
imposed by subsection (2) above is to be imposed on the National
15Health Service Commissioning Board, subsections (2D) to (2F) above
have effect as if—

(a) references to the commissioning consortium were references to
the National Health Service Commissioning Board; and

(b) subsection (2E) above were omitted.

(2I) 20Section 272(7) and (8) of the National Health Service Act 2006 applies to
the power to make regulations under subsection (2G) above as it
applies to a power to make regulations under that Act.”

(5) In subsection (3)—

(a) after “section “the” insert “commissioning consortium or”,

(b) 25omit “Primary Care Trust or” in each place it appears, and

(c) after “means the”, in the first place it appears, insert “commissioning
consortium or”.

(6) In consequence of the repeals made by subsections (2)(b) and (5)(b), omit
paragraph 47 of Schedule 2 to the National Health Service Reform and Health
30Care Professions Act 2002.

37 Provision of pocket money for in-patients

(1) Section 122 of the Mental Health Act 1983 (provision of pocket money for in-
patients) is amended as follows.

(2) In subsection (1)—

(a) 35for “Secretary of State may” substitute “Welsh Ministers may (in
relation to Wales)”,

(b) for “he thinks fit” substitute “the Welsh Ministers think fit”,

(c) for “their” substitute “those persons’”,

(d) for “him” substitute “the Welsh Ministers”, and

(e) 40for “they” substitute “those persons”.

(3) In subsection (2)—

(a) omit “the National Health Service Act 2006 and”, and

(b) for “either of those Acts” substitute “that Act”.

(4) In section 146 of that Act (application to Scotland), omit “122,”.

38 Transfers to and from special hospitals

(1) Omit section 123 of the Mental Health Act 1983 (transfers to and from special
hospitals).

(2) In section 68A of that Act (power to reduce periods after which cases must be
5referred to tribunal), in subsection (4)—

(a) after paragraph (c), insert “or”,

(b) omit the “or” following paragraph (d), and

(c) omit paragraph (e).

(3) In section 138 of that Act (retaking of patients escaping from custody), in
10subsection (4)(a), omit “or under section 123 above”.

(4) In consequence of the repeal made by subsection (1), omit paragraph 67 of
Schedule 4 to the Health Act 1999.

(5) This section does not affect—

(a) the authority for the detention of a person who is liable to be detained
15under the Mental Health Act 1983 before the commencement of this
section,

(b) that Act in relation to any application, order or direction for admission
or removal to a hospital made under that Act before that
commencement, or

(c) 20the authority for the retaking of a person who, before that
commencement, escapes while being taken to or from a hospital as
mentioned in section 138(4)(a) of that Act.

39 Independent mental health advocates

(1) In section 130A of the Mental Health Act 1983 (independent mental health
25advocates: England), in subsection (1)—

(a) for “The Secretary of State” substitute “A local social services authority
whose area is in England”, and

(b) at the end insert “for whom the authority is responsible for the
purposes of this section”.

(2) 30In subsection (4) of that section, for “the Secretary of State” substitute “a local
social services authority”.

(3) In section 130C of that Act (provision supplementary to section 130A), after
subsection (4) insert—

“(4A) A local social services authority is responsible for a qualifying patient
35if—

(a) in the case of a qualifying patient falling within subsection (2)(a)
above, the hospital or registered establishment in which he is
liable to be detained is situated in that authority’s area;

(b) in the case of a qualifying patient falling within subsection (2)(b)
40above, that authority is the responsible local social services
authority within the meaning of section 34(3) above;

(c) in the case of a qualifying patient falling within subsection
(2)(c), the responsible hospital is situated in that authority’s
area;

(d) 45in the case of a qualifying patient falling within subsection (3)—

(i) in a case where the patient has capacity or is competent
to do so, he nominates that authority as responsible for
him for the purposes of section 130A above, or

(ii) in any other case, a donee or deputy or the Court of
5Protection, or a person engaged in caring for the patient
or interested in his welfare, nominates that authority on
his behalf as responsible for him for the purposes of that
section.

(4B) In subsection (4A)(d) above—

(a) 10the reference to a patient who has capacity is to be read in
accordance with the Mental Capacity Act 2005;

(b) the reference to a donee is to a donee of a lasting power of
attorney (within the meaning of section 9 of that Act) created by
the patient, where the donee is acting within the scope of his
15authority and in accordance with that Act;

(c) the reference to a deputy is to a deputy appointed for the patient
by the Court of Protection under section 16 of that Act, where
the deputy is acting within the scope of his authority and in
accordance with that Act.”

(4) 20In Schedule 1 to the Local Authority Social Services Act 1970 (social services
functions), in the entry for the Mental Health Act 1983, at the appropriate place
insert—

40 Patients’ correspondence

(1) In section 134 of the Mental Health Act 1983 (patients’ correspondence), in
subsection (1)—

(a) 30before “the approved clinician” insert “or”, and

(b) omit “or the Secretary of State”.

(2) Subsection (1) of this section does not affect the validity of any requests made
to the Secretary of State under section 134(1) of that Act and having effect
immediately before the commencement of this section.

41 35Notification of hospitals having arrangements for special cases

(1) In section 140 of the Mental Health Act 1983 (notification of hospitals having
arrangements for special cases)—

(a) after “the duty of” insert “every commissioning consortium and of”,

(b) omit “every Primary Care Trust and of”,

(c) 40after “the area of the” insert “commissioning consortium or”,

(d) omit “Primary Care Trust or” in the first place it appears,

(e) after “available to the” insert “commissioning consortium or”, and

(f) omit “Primary Care Trust or” in the second place it appears.

(2) In consequence of the repeals made by this section, in the National Health
Service Reform and Health Care Professions Act 2002, in Schedule 2, omit
paragraph 48(a) and (c).

Emergency powers

42 5Role of the Board and consortia in respect of emergencies

For the cross-heading preceding section 253 of the National Health Service Act
2006 substitute “Emergencies: role of the Secretary of State, the Board and
consortia” and after the cross-heading insert—

“252A Role of the Board and consortia in respect of emergencies

(1) 10The Board and each commissioning consortium must take appropriate
steps for securing that it is properly prepared for dealing with a
relevant emergency.

(2) The Board must take such steps as it considers appropriate for securing
that each commissioning consortium is properly prepared for dealing
15with a relevant emergency.

(3) The steps taken by the Board under subsection (2) must include
monitoring compliance by each commissioning consortium with its
duty under subsection (1).

(4) The Board must take such steps as it considers appropriate for securing
20that each relevant service provider is properly prepared for dealing
with a relevant emergency.

(5) The steps taken by the Board under subsection (4) must include
monitoring compliance by the service provider with any requirements
imposed on it by its service arrangements for the purpose of securing
25that it is properly prepared for dealing with a relevant emergency.

(6) The Board may take such steps as it considers appropriate for
facilitating a co-ordinated response to an emergency by the
commissioning consortia and relevant service providers for which it is
a relevant emergency.

(7) 30The Board may arrange for any body or person to exercise any
functions of the Board under subsections (2) to (6).

(8) A relevant service provider must appoint an individual to be
responsible for—

(a) securing that the provider is properly prepared for dealing with
35a relevant emergency,

(b) securing that the provider complies with any requirements
mentioned in subsection (5), and

(c) providing the Board with such information as it may require for
the purpose of discharging its functions under this section.

(9) 40In this section—

• “relevant emergency”, in relation to the Board or a commissioning
  consortium, means any emergency which might affect the
  Board or the consortium (whether by increasing the need for the
  services that it may arrange or in any other way);

Health and Social Care BillPage 75

• “relevant emergency”, in relation to a relevant service provider,
  means any emergency which might affect the provider
  (whether by increasing the need for the services that it may
  provide or in any other way);

• 5“relevant service provider” means any body or person providing
  services in pursuance of service arrangements;

• “service arrangements”, in relation to a relevant service provider,
  means arrangements made by the Board or a commissioning
  consortium under section 3, 3A, 3B or 4 or Schedule 1.”

43 10Secretary of State’s emergency powers

(1) Section 253 of the National Health Service Act 2006 (emergency powers) is
amended as follows.

(2) In subsection (1) for the words from “it is necessary” to the end of the
subsection substitute “it is appropriate to do so”.

(3) 15After subsection (1) insert—

“(1A) A direction under this section may be given to—

(a) an NHS body other than a Local Health Board;

(b) the National Institute for Health and Care Excellence;

(c) the Health and Social Care Information Centre;

(d) 20any body or person providing services in pursuance of
arrangements made in the exercise of the functions of the Board
or commissioning consortia under section 3, 3A, 3B or 4 or
Schedule 1, other than an NHS body.”

(4) For subsection (2) substitute—

“(2) 25In relation to a body within subsection (1A)(a) to (c), the powers
conferred by this section may be exercised—

(a) to give directions to the body about the exercise of any of its
functions;

(b) to direct the body to cease to exercise any of its functions for a
30specified period;

(c) to direct the body to exercise any of its functions concurrently
with another body or person for a specified period;

(d) to direct the body to exercise any function conferred on another
body or person under or by virtue of this Act for a specified
35period (whether to the exclusion of, or concurrently with, that
body or person).

(2A) In relation to a body or person within subsection (1A)(d), the powers
conferred by this section may be exercised—

(a) to give directions to the body or person about the provision of
40any services that it provides in pursuance of arrangements
mentioned in subsection (1A)(d);

(b) to direct the body or person to cease to provide any of those
services for a specified period;

(c) to direct the body or person to provide other services for the
45purposes of the health service for a specified period.”

(5) After subsection (2A) insert—

“(2B) The Secretary of State may direct the Board to exercise the functions of
the Secretary of State under this section.

(2C) The Secretary of State may give directions to the Board about its
5exercise of any functions that are the subject of a direction under
subsection (2B).

(2D) In this section, “specified” means specified in the direction.”

(6) Omit subsection (4) (exclusion of NHS foundation trusts from application of
emergency powers).

(7) 10In section 273 of that Act (further provision about orders and directions under
the Act), in subsection (4)(c)(ii), for “or 120” substitute “, 120 or 253”.

Miscellaneous

44 New Special Health Authorities

(1) After section 28 of the National Health Service Act 2006 (special health
15authorities) insert—

“28A Special Health Authorities: further provision

(1) This section applies in relation to an order under section 28 which is
made after the coming into force of section 44 of the Health and Social
Care Act 2011.

(2) 20The order must include—

(a) provision for the abolition of the Special Health Authority on a
day specified in the order, and

(b) provision as to the transfer of officers, property and liabilities of
the Authority on its abolition.

(3) 25The day specified in accordance with subsection (2)(a) must be within
the period of 3 years beginning with the day on which the Special
Health Authority is established.

(4) The power (by virtue of section 273(1)) to vary an order under section
28 includes power to vary the provision mentioned in subsection (2)
30by—

(a) providing for the abolition of the Special Health Authority on a
day which is earlier or later than the day for the time being
specified in the order;

(b) making different provision as to the matters mentioned in
35subsection (2)(b).

(5) If an order is varied to provide for the abolition of the Special Health
Authority on a later day, that day must be within the period of 3 years
beginning with the day on which the Special Health Authority would
(but for the variation) have been abolished.”

(2) 40In section 272 of that Act (orders, regulations, rules and directions), in
subsection (6), after paragraph (zb) insert—

“(zc) an order under section 28 which varies such an order as
mentioned in section 28A(5),”.

45 Primary care services: directions as to exercise of functions

(1) After section 98 of the National Health Service Act 2006 insert—

“Directions

98A Exercise of functions

(1) 5The Secretary of State may direct the Board to exercise any of the
Secretary of State’s functions relating to the provision of primary
medical services.

(2) The Secretary of State may give directions to the Board about its
exercise of any functions relating to the provision of primary medical
10services (including functions which the Board has been directed to
exercise under subsection (1)).

(3) The Board may direct a commissioning consortium to exercise any of
the Board’s functions relating to the provision of primary medical
services.

(4) 15The Board may give directions to a commissioning consortium about
the exercise by it of any functions relating to the provision of primary
medical services (including functions which the consortium has been
directed to exercise under subsection (3)).

(5) Subsection (3) does not apply to such functions, or functions of such
20descriptions, as may be prescribed.

(6) Where the Board gives a direction under subsection (3) or (4), it may
disclose to the consortium information it has about the provision of the
primary medical services in question, if the Board considers it
necessary or appropriate to do so in order to enable or assist the
25consortium to exercise the function specified in the direction.

(7) A commissioning consortium exercising a function specified in a
direction under subsection (3) or (4) must report to the Board on
matters arising out of the consortium’s exercise of the function.

(8) A report under subsection (7) must be made in such form and manner
30as the Board may specify.

(9) The Board may, in exercising its functions relating to the provision of
the primary medical services in question, have regard to a report under
subsection (7).”

(2) After section 114 of that Act insert—

35“Directions

114A Exercise of functions

(1) The Secretary of State may direct the Board to exercise any of the
Secretary of State’s functions relating to the provision of primary dental
services.

(2) 40The Secretary of State may give directions to the Board about its
exercise of any functions relating to the provision of primary dental

services (including functions which the Board has been directed to
exercise under subsection (1)).”

(3) After section 125 of that Act insert—

“Directions

125A 5Exercise of functions

(1) The Secretary of State may direct the Board to exercise any of the
Secretary of State’s functions relating to the provision of primary
ophthalmic services.

(2) The Secretary of State may give directions to the Board about its
10exercise of any functions relating to the provision of primary
ophthalmic services (including functions which the Board has been
directed to exercise under subsection (1)).

(3) The Board may direct a commissioning consortium, a Special Health
Authority or such other body as may be prescribed to exercise any of
15the Board’s functions relating to the provision of primary ophthalmic
services.

(4) The Board may give directions to a commissioning consortium, a
Special Health Authority or such other body as may be prescribed
about the exercise by the body of any functions relating to the provision
20of primary ophthalmic services (including functions which it has been
directed to exercise under subsection (3)).

(5) Subsection (3) does not apply to such functions, or functions of such
descriptions, as may be prescribed.

(6) Where the Board gives a direction to a body under subsection (3) or (4),
25it may disclose to the body the information it has about the provision of
the primary ophthalmic services in question, if the Board considers it
necessary or appropriate to do so in order to enable or assist the body
to exercise the function specified in the direction.

(7) A body which is given a direction under subsection (3) or (4) must
30report to the Board on matters arising out of the exercise of the function
to which the direction relates.

(8) A report under subsection (7) must be made in such form and manner
as the Board may specify.

(9) The Board may, in exercising its functions relating to the provision of
35the primary ophthalmic services in question, have regard to a report
under subsection (7).”

(4) After section 168 of that Act insert—

“Directions

168A Exercise of functions

(1) 40The Secretary of State may direct the Board to exercise any of the
Secretary of State’s functions relating to services that may be provided
as pharmaceutical services, or as local pharmaceutical services, under
this Part.

(2) The Secretary of State may give directions to the Board about its
exercise of any functions relating to pharmaceutical services or to local
pharmaceutical services (including functions which the Board has been
directed to exercise under subsection (1)).”

46 5Charges in respect of certain public health functions

(1) After section 186 of the National Health Service Act 2006 insert—

“186A Charges in respect of public health functions

(1) The Secretary of State may make charges under this subsection in
respect of any step taken under section 2A.

(2) 10The power conferred by subsection (1) does not apply in respect of the
provision of a service or facility to an individual, or the taking of any
other step in relation to an individual, for the purpose of protecting the
individual’s health.

(3) Charges under subsection (1) may be calculated on such basis as the
15Secretary of State considers appropriate.

(4) Regulations may provide for the making and recovery of charges in
respect of—

(a) the taking of prescribed steps by a local authority under section
2A (by virtue of regulations under section 6C(1)), and

(b) 20the taking of prescribed steps by a local authority under section
2B.

(5) Regulations under subsection (4) may make provision as to the
calculation of charges authorised by the regulations, including
provision prescribing the amount or the maximum amount that may be
25charged.

(6) Nothing in this section affects any other power conferred by or under
this Act to make charges.”

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

“(ze) 30regulations under section 186A(4),”.

47 Pharmaceutical services expenditure

(1) After section 165 of the National Health Service Act 2006 insert—

“165A Pharmaceutical remuneration: further provision

(1) The Board must provide the Secretary of State with such information
35relating to the remuneration paid by the Board to persons providing
pharmaceutical services or local pharmaceutical services as the
Secretary of State may require.

(2) The information must be provided in such form, and at such time or
within such period, as the Secretary of State may require.

(3) 40Schedule 12A makes further provision about pharmaceutical
remuneration.”