Care Bill (HC Bill 168)

(b) has a physical or mental impairment which is not a disability but which
gives rise, or which the authority considers may in the future give rise,
to needs for care and support, or

(c) comes within any other category of persons the authority considers
5appropriate to include in a register of persons who have, or the
authority considers may in the future have, needs for care and support.

(5) “Disability” has the meaning given by section 6 of the Equality Act 2010.

77 Guidance, etc.

(1) A local authority must act under the general guidance of the Secretary of State
10in the exercise of functions given to it by this Part or by regulations under this
Part.

(2) Before issuing any guidance for the purposes of subsection (1), the Secretary of
State must consult such persons as the Secretary of State considers appropriate.

(3) The Secretary of State must have regard to the general duty of local authorities
15under section 1(1) (promotion of individual well-being)—

(a) in issuing guidance for the purposes of subsection (1);

(b) in making regulations under this Part.

78 Delegation of local authority functions

(1) A local authority may authorise a person to exercise on its behalf a function it
20has under—

(a) this Part or regulations under this Part (but see subsection (2)), or

(b) section 117 of the Mental Health Act 1983 (after-care services).

(2) The references in subsection (1)(a) to this Part do not include a reference to—

(a) section 3 (promoting integration with health services etc.),

(b) 25sections 6 and 7 (co-operating),

(c) section 14 (charges),

(d) sections 31 to 33 (making direct payments),

(e) sections 42 to 47 (safeguarding adults at risk of abuse or neglect), or

(f) this section.

(3) 30An authorisation under this section may authorise an employee of the
authorised person to exercise the function to which the authorisation relates;
and for that purpose, where the authorised person is a body corporate,
“employee” includes a director or officer of the body.

(4) An authorisation under this section may authorise the exercise of the function
35to which it relates—

(a) either wholly or to the extent specified in the authorisation;

(b) either generally or in cases, circumstances or areas so specified;

(c) either unconditionally or subject to conditions so specified.

(5) An authorisation under this section—

(a) 40is for the period specified in the authorisation;

(b) may be revoked by the local authority;

(c) does not prevent the local authority from exercising the function to
which the authorisation relates.

(6) Anything done or omitted to be done by or in relation to a person authorised
under this section in, or in connection with, the exercise or purported exercise
of the function to which the authorisation relates is to be treated for all
purposes as done or omitted to be done by or in relation to the local authority.

(7) 5But subsection (6) does not apply—

(a) for the purposes of the terms of any contract between the authorised
person and the local authority which relate to the function, or

(b) for the purposes of any criminal proceedings brought in respect of
anything done or omitted to be done by the authorised person.

(8) 10Schedule 15 to the Deregulation and Contracting Out Act 1994 (which permits
disclosure of information between local authorities and contractors where that
is necessary for the exercise of the functions concerned, even if that would
otherwise be unlawful) applies to an authorisation under this section as it
applies to an authorisation by virtue of an order under section 70(2) of that Act.

(9) 15The Secretary of State may by order—

(a) amend subsection (2) so as to add to or remove from the list a provision
of this Part;

(b) amend subsection (1) so as to add to or remove from the list a provision
relating to care and support for adults or support for carers;

(c) 20impose conditions or other restrictions on the exercise of the power
under subsection (1), whether by amending this section or otherwise.

(10) The provision which may be made in an order under subsection (9) in reliance
on section 123(7) (supplementary etc. provision in orders under this Act)
includes, in particular, provision as to the rights and obligations of local
25authorities and persons authorised under this section in light of the provision
made by the order.

(11) “Function” includes a power to do anything that is calculated to facilitate, or is
conducive or incidental to, the exercise of a function.

General

79 30Part

1

: interpretation

(1) For the purposes of this Part, an expression in the first column of the following
table is defined or otherwise explained by the provision of this Act specified in
the second column.

(2) A reference in this Part to having or lacking capacity, or to a person’s best
interests, is to be interpreted in accordance with the Mental Capacity Act 2005.

(3) 30A reference in this Part to being authorised under the Mental Capacity Act 2005
is a reference to being authorised (whether in general or specific terms) as—

(a) a donee of a lasting power of attorney granted under that Act, or

(b) a deputy appointed by the Court of Protection under section 16(2)(b) of
that Act.

Part 2 Care standards

5Quality of services

80 Duty of candour

In section 20 of the Health and Social Care Act 2008 (regulation of regulated
activities), after subsection (5) insert—

“(5A) Regulations under this section must make provision as to the provision
10of information in a case where an incident of a specified description
affecting a person’s safety occurs in the course of the person being
provided with a service.”

81 Warning notice

(1) In section 29 of the Health and Social Care Act 2008 (warning notice), after
15subsection (1) insert—

“(1A) But a warning notice under this section may not be given to an NHS
trust established under section 25 of the National Health Service Act
2006 or an NHS foundation trust.”

(2) In subsections (2) and (3)(a) of that section, after “warning notice” insert “under
20this section”.

(3) After that section insert—

“29A Warning notice: quality of health care

(1) If it appears to the Commission that the quality of health care provided
by an NHS trust established under section 25 of the National Health
25Service Act 2006 or by an NHS foundation trust requires significant
improvement, the Commission may give the trust a warning notice.

(2) A warning notice under this section is a notice in writing—

(a) stating that the Commission has formed the view that the
quality of health care provided by the trust requires significant
30improvement,

(b) specifying the health care concerned,

(c) giving the Commission’s reasons for its view, and

(d) requiring the trust to make a significant improvement to the
quality of the health care concerned within a specified time.

(3) 35Where a warning notice under this section imposes more than one
requirement under subsection (2)(d), it may specify different times for
different requirements.

(4) The Commission must—

(a) where the notice specifies only one time under subsection
(2)(d), determine at the end of that time whether the
requirement has been complied with;

(b) where the notice specifies more than one time under subsection
5(2)(d), determine at the end of the latest of those times, whether
the requirements have been complied with.

(5) Where, having carried out the duty under subsection (4), the
Commission is satisfied that a requirement to which the notice relates
has not been complied with, it—

(a) 10must decide what action to take in relation to the trust, and

(b) in so deciding in the case of an NHS foundation trust, must
consider in particular whether to require Monitor to make an
order under section 65D(2) of the National Health Service Act
2006 (appointment of trust special administrator).”

(4) 15In each of the following provisions of that Act, after “section 29” insert “or
29A”—

(a) section 32(1)(a) (decisions against which appeal may not be made to the
First-tier tribunal),

(b) section 39(2)(c) (bodies required to be given certain notices), and

(c) 20section 89(1)(e) and (2) (publication of information relating to
enforcement action).

(5) In section 88(1)(d) of that Act (guidance issued by the Commission about
enforcement action), for “section 29” substitute “sections 29 and 29A”.

82 Imposition of licence conditions on NHS foundation trusts

(1) 25Section 111 of the Health and Social Care Act 2012 (imposition by Monitor of
licence conditions on NHS foundation trusts during transitional period) is
amended as follows.

(2) After subsection (2) insert—

“(2A) Where a warning notice under section 29A of the Health and Social
30Care Act 2008 is given to an NHS foundation trust, Monitor may
include in the trust’s licence such conditions as it considers appropriate
in connection with the matters to which the notice relates.”

(3) In subsections (3) to (5) and (7) to (9), after “subsection (1)” in each place it
appears insert “or (2A)”.

83 35Trust special administration: appointment of administrator

(1) In section 65D of the National Health Service Act 2006 (NHS foundation trusts:
appointment of trust special administrator), in subsection (1)—

(a) after “satisfied that” insert “—

(a)”, and

(b) 40at the end insert “, or

(b) there is a serious failure by an NHS foundation trust to
provide services that are of sufficient quality to be
provided under this Act and it is appropriate to make an
order under subsection (2).”

(2) After that subsection insert—

“(1A) This section also applies if the Care Quality Commission—

(a) is satisfied that there is a serious failure by an NHS foundation
trust to provide services that are of sufficient quality to be
5provided under this Act and that it is appropriate to make an
order under subsection (2),

(b) informs the regulator that it is satisfied as mentioned in
paragraph (a) and gives the regulator its reasons for being so
satisfied, and

(c) 10requires the regulator to make an order under subsection (2).”

(3) In subsection (2) of that section, after “The regulator may” insert “or, where this
section applies as a result of subsection (1A), must”.

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

“(3A) Before imposing a requirement as mentioned in subsection (1A)(c), the
15Care Quality Commission must—

(a) consult the Secretary of State and the regulator, and

(b) having done that, consult—

(i) the trust,

(ii) the Board, and

(iii) 20any other person to which the trust provides services
under this Act and which the Commission considers it
appropriate to consult.”

(5) In subsection (4) of that section, after “making an order under this section”
insert “(except where it is required to do so as a result of subsection (1A))”.

(6) 25In section 65N of that Act (guidance for trust special administrators), after
subsection (3) insert—

“(3A) Before publishing guidance under this section, the Secretary of State
must consult the Care Quality Commission.”

(7) In subsection (4) of that section, for “the reference in subsection (1) to the
30Secretary of State is to be read as a reference” substitute “the references in
subsections (1) and (3A) to the Secretary of State are to be read as references”.

(8) In paragraph 24 of Schedule 14 to the Health and Social Care Act 2012
(abolition of NHS trusts in England: consequential amendments to section 65N
of the National Health Service Act 2006), after sub-paragraph (2) insert—

“(2A) 35In subsection (3A), for “the Secretary of State” substitute “the
regulator”.”

84 Trust special administration: objective, consultation and reports

(1) In section 65DA of the National Health Service Act 2006 (objective of trust
special administration), in subsection (1), after paragraph (a) (but before the
40following “and”) insert—

“(aa) that the services whose continuous provision is secured as
mentioned in paragraph (a) are of sufficient safety and quality
to be provided under this Act,”.

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

“(5A) Before publishing guidance under subsection (4)(c), the regulator must
consult the Care Quality Commission.”

(3) In section 65F of that Act (administrator’s draft report), in subsection (2)—

(a) 5omit the “and” preceding paragraph (b), and

(b) after that paragraph insert “, and

(c) the Care Quality Commission.”

(4) In subsection (5) of that section, in paragraph (a), for “65DA” substitute
“65DA(1)(a)”.

(5) 10After that subsection insert—

“(5A) Nor, in the case of an NHS foundation trust, may the administrator
provide the draft report to the regulator under subsection (1) without
having obtained from the Care Quality Commission a statement that it
considers that the recommendation in the draft report would achieve
15that part of the objective set out in section 65DA(1)(aa).”

(6) In subsection (6) of that section—

(a) after “Where the Board” insert “or the Care Quality Commission”,

(b) for “to that effect” substitute “to the effect mentioned in subsection (5)
or (5A)”, and

(c) 20after “, the Board” insert “or (as the case may be) the Commission”.

(7) In section 65G of that Act (consultation plan), in subsection (4), in paragraph
(a), for “65DA” substitute “65DA(1)(a)”.

(8) After that subsection insert—

“(4A) Nor may the administrator make a variation to the draft report
25following the consultation period without having obtained from the
Care Quality Commission a statement that it considers that the
recommendation in the draft report as so varied would achieve that
part of the objective set out in section 65DA(1)(aa).”

(9) In subsection (5) of that section—

(a) 30after “Where the Board” insert “or the Care Quality Commission”,

(b) for “to that effect” substitute “to the effect mentioned in subsection (4)
or (4A)”, and

(c) after “, the Board” insert “or (as the case may be) the Commission”.

(10) In section 65H of that Act (consultation requirements)—

(a) 35in subsection (7), after paragraph (b) insert—

“(ba) the Care Quality Commission;”, and

(b) in subsection (9), after “subsection (7)(b),” insert “(ba),”.

(11) In section 65KB of that Act (Secretary of State’s response to regulator’s
decision), in subsection (1), after paragraph (c) insert—

“(ca) 40that the Care Quality Commission has discharged its functions
for the purposes of this Chapter,”.

(12) In subsection (2) of that section, in paragraph (b), after “the regulator” insert
“and the Care Quality Commission”.

(13) In section 65KD of that Act (Secretary of State’s response to re-submitted final
report), in subsection (3), for “(8)” substitute “(8A)”.

(14) After subsection (8) of that section insert—

“(8A) If the notice states that the Care Quality Commission has failed to
5discharge a function—

(a) the Care Quality Commission is to be treated for the purposes
of this Act as having failed to discharge the function, and

(b) the failure is to be treated for those purposes as significant (and
section 82 of the Health and Social Care Act 2008 applies
10accordingly).”

(15) In paragraph 15(4) of Schedule 14 to the Health and Social Care Act 2012
(abolition of NHS trusts in England: consequential amendments to section 65F
of the National Health Service Act 2006)—

(a) in the new subsection (2A) to be inserted by paragraph 15(4), in
15paragraph (a), for “65DA” substitute “65DA(1)(a)”,

(b) after that new subsection, insert—

“(2AA) Nor may the administrator provide the draft report to the
regulator under subsection (1) without having obtained from
the Care Quality Commission a statement that it considers that
20the recommendation in the draft report would achieve that part
of the objective set out in section 65DA(1)(aa).”, and

(c) in the new subsection (2B) to be inserted by paragraph 15(4)—

(i) after “Where the Board” insert “or the Care Quality
Commission”,

(ii) 25for “to that effect” substitute “to the effect mentioned in
subsection (2A) or (2AA)”, and

(iii) after “, the Board” insert “or (as the case may be) the
Commission”.

Care Quality Commission

85 30Restriction on applications for variation or removal of conditions

(1) Section 19 of the Health and Social Care Act 2008 (applications by registered
persons to the Care Quality Commission for variation or removal of
conditions, etc.) is amended as follows.

(2) In subsection (1), after “Except in case A or B” insert “and subject to subsections
35(3A) to (3F)”.

(3) After subsection (3) insert—

“(3A) R may not apply under subsection (1)(a) for the variation of a condition
where either subsection (3B) or (3C) applies.

(3B) This subsection applies where—

(a) 40the Commission has given R notice under section 26(4)(c) of a
proposal to make that variation (or a variation which would
have substantially the same effect as that variation), and

(b) the Commission has not decided not to take that step.

(3C) This subsection applies where—

(a) the Commission has given R notice under section 28(3) of its
decision to make that variation (or a variation which would
have substantially the same effect as that variation), and

(b) either the time within which an appeal may be brought has not
5expired or, if an appeal has been brought, it has not yet been
determined.

(3D) R may not apply under subsection (1)(a) for the removal of a condition
where either subsection (3E) or (3F) applies.

(3E) This subsection applies where—

(a) 10the Commission has given R notice under section 26(4)(c) of a
proposal to remove that condition, and

(b) the Commission has not decided not to take that step.

(3F) This subsection applies where—

(a) the Commission has given R notice under section 28(3) of its
15decision to remove that condition, and

(b) either the time within which an appeal may be brought has not
expired or, if an appeal has been brought, it has not yet been
determined.”

(4) The amendments made by this section do not affect any application made
20under section 19(1)(a) of the Health and Social Care Act 2008 before the day on
which those amendments come into force.

86 Rights of appeal

(1) In section 26 of the Health and Social Care Act 2008 (registration procedure:
notice of proposals), after subsection (4) insert—

“(4A) 25Where a proposal under subsection (4) names an individual and
specifies action that the Commission would require the registered
person to take in relation to that individual, the Commission must give
that individual notice in writing of the proposal.”

(2) In section 28 of that Act (notice of decisions), in subsection (6), for “subsection
30(7)” substitute “subsections (7) to (9)”.

(3) In that section, after subsection (7) insert—

“(8) But in a case where notice of the proposal has been given to an
individual under section 26(4A) subsection (7) does not apply unless,
by the time the Commission receives the applicant’s notification, it has
35received notification from the individual that he or she does not intend
to appeal.

(9) And if the Commission receives notification from the individual after it
receives the applicant’s notification and before the end of the period
mentioned in subsection (6)(a), the decision is to take effect when the
40Commission receives the individual’s notification.”

87 Unitary board

(1) In paragraph 3 of Schedule 1 to the Health and Social Care Act 2008
(membership of the Care Quality Commission), in sub-paragraph (1)—

(a) after paragraph (a), omit “and”, and

(b) at the end of paragraph (b) insert “,

(c) a chief executive appointed by the members
appointed under paragraphs (a) and (b), and

(d) other members appointed by the members appointed
5under paragraphs (a) and (b)”.

(2) After that sub-paragraph, insert—

“(1A) The members appointed under sub-paragraph (1)(a) and (b)—

(a) are not employees of the Commission, and

(b) are referred to in this Schedule as the “non-executive
10members”.

(1B) The members appointed under sub-paragraph (1)(c) and (d)—

(a) are employees of the Commission, and

(b) are referred to in this Schedule as the “executive members”.

(1C) The number of non-executive members must exceed the number of
15executive members.”

(3) In sub-paragraph (2) of that paragraph—

(a) for “sub-paragraph (1)”, substitute “sub-paragraph (1)(a) and (b)”, and

(b) for “the members”, substitute “the non-executive members”.

(4) In sub-paragraph (3) of that paragraph, for “any other member”, substitute
20“any other non-executive member”.

(5) In sub-paragraph (4) of that paragraph—

(a) in paragraph (a)—

(i) for “other members”, substitute “other non-executive
members”, and

(ii) 25for “of members who may be appointed”, substitute “of such
members who may be appointed”,

(b) after paragraph (a), omit “and”,

(c) in paragraph (b), for “other members”, substitute “other non-executive
members”, and

(d) 30after paragraph (b), insert—

“(c) the limits on the total number of members who may
be appointed, and

(d) the minimum total number of members who must be
appointed”.

(6) 35In paragraph 4 of that Schedule (the cross-heading preceding which becomes
“Remuneration and allowances for non-executive members”), in sub-
paragraphs (1) and (2), for “any other member”, substitute “any other non-
executive member”.

(7) In paragraph 5 of that Schedule (employees), omit sub-paragraph (1).

(8) 40In sub-paragraph (2) of that paragraph, for “such other employees”, substitute
“such employees (in addition to the executive members appointed by the non-
executive members)”.