(j) the need for high standards in the education and training of health care
professionals who provide health care services for the purposes of the
NHS,

(k) the manner in which the Secretary of State performs the duty under
5section 1A(1) of the National Health Service Act 2006 (improvement in
quality of services),

(l) the manner in which the National Health Service Commissioning
Board performs the duties under section 1E(3) of that Act
(commissioning of services), and

(m) 10the manner in which the National Health Service Commissioning
Board performs the duty under section 13E(1) of that Act
(improvement in quality of services).

63 Conflicts between functions

(1) In a case where Monitor considers that any of its general duties conflict with
15each other, it must secure that the conflict is resolved in the manner it considers
best.

(2) Monitor must act so as to secure that there is not, and could not reasonably be
regarded as being, a conflict between—

(a) its exercise of any of its functions under Chapter 5 of Part 2 of the
20National Health Service Act 2006 (regulation of NHS foundation trusts)
or under sections 109 and 111 of this Act (imposition of licence
conditions on NHS foundation trusts during transitional period) or
under paragraph 17 of Schedule 8 to this Act (accounts of NHS
foundation trusts), and

(b) 25its exercise of any of its other functions.

(3) Monitor must ignore the functions it has under sections 109 and 111 when
exercising—

(a) its functions under Chapter 2 (competition);

(b) its functions under Chapter 4 (pricing).

(4) 30If Monitor secures the resolution of a conflict between its general duties in a
case that comes within subsection (5), or that Monitor considers is otherwise of
unusual importance, it must publish a statement setting out—

(a) the nature of the conflict,

(b) the manner in which it decided to resolve it, and

(c) 35its reasons for deciding to resolve it in that manner.

(5) A case comes within this subsection if it involves—

(a) a matter likely to have a significant impact on persons who provide
health care services for the purposes of the NHS;

(b) a matter likely to have a significant impact on people who use health
40care services provided for the purposes of the NHS;

(c) a matter likely to have a significant impact on the general public in
England (or in a particular part of England);

(d) a major change in the activities Monitor carries on;

(e) a major change in the standard conditions of licences under Chapter 3
45(see section 93).

(6) Where Monitor is required to publish a statement under subsection (4), it must
do so as soon as reasonably practicable after making its decision.

(7) The duty under subsection (4) does not apply in so far as Monitor is subject to
an obligation not to publish a matter that needs to be included in the statement.

(8) Every annual report of Monitor must include—

(a) a statement of the steps it has taken in the financial year to which the
5report relates to comply with the duty under subsection (2), and

(b) a summary of the manner in which, in that financial year, Monitor has
secured the resolution of conflicts between its general duties arising in
cases of the kind referred to in subsection (5).

(9) Monitor’s general duties for the purposes of this section are its duties under
10sections 59 and 62.

64 Duty to review regulatory burdens

(1) Monitor must keep the exercise of its functions under review and secure that
in exercising its functions it does not—

(a) impose burdens which it considers to be unnecessary, or

(b) 15maintain burdens which it considers to have become unnecessary.

(2) In keeping the exercise of its functions under review, Monitor must have
regard to such principles as appear to it to represent best regulatory practice.

(3) Subsection (1) does not require the removal of a burden which has become
unnecessary where its removal would, having regard to all the circumstances,
20be impractical or disproportionate.

(4) Monitor must from time to time publish a statement setting out—

(a) what it proposes to do pursuant to subsection (1) in the period to which
the statement relates,

(b) what it has done pursuant to that subsection since publishing the
25previous statement, and

(c) where a burden relating to the exercise of the function which has
become unnecessary is maintained pursuant to subsection (3), the
reasons why removal of the burden would, having regard to all the
circumstances, be impractical or disproportionate.

(5) 30The first statement—

(a) must be published as soon as practicable after the commencement of
this section, and

(b) must relate to the period of 12 months beginning with the date of
publication.

(6) 35A subsequent statement—

(a) must be published during the period to which the previous statement
related or as soon as reasonably practicable after that period, and

(b) must relate to the period of 12 months beginning with the end of the
previous period.

(7) 40Monitor must, in exercising its functions, have regard to the statement that is
in force at the time in question.

(8) Monitor may revise a statement before or during the period to which it relates;
and, if it does so, it must publish the revision as soon as reasonably practicable.

65 Duty to carry out impact assessments

(1) This section applies where Monitor is proposing to do something that it
considers would be likely—

(a) to have a significant impact on persons who provide health care
5services for the purposes of the NHS;

(b) to have a significant impact on people who use health care services
provided for the purposes of the NHS;

(c) to have a significant impact on the general public in England (or in a
particular part of England);

(d) 10to involve a major change in the activities Monitor carries on;

(e) to involve a major change in the standard conditions of licences under
Chapter 3 (see section 93).

(2) But this section does not apply to—

(a) the carrying out by Monitor of an analysis of how markets involving
15the provision of health care services are operating, or

(b) the exercise of functions under or by virtue of Chapter 2.

(3) Nor does this section apply if it appears to Monitor that the urgency of the
matter makes compliance with this section impracticable or inappropriate.

(4) Before implementing the proposal, Monitor must either—

(a) 20carry out and publish an assessment of the likely impact of
implementation, or

(b) publish a statement setting out its reasons for concluding that it does
not need to carry out an assessment under paragraph (a).

(5) The assessment must set out Monitor’s explanation of how the discharge of its
25general duties (within the meaning of section 63)—

(a) would be secured by implementation of the proposal, but

(b) would not be secured by the exercise of functions that Monitor has by
virtue of section 68 or 69.

(6) The assessment may take such form, and relate to such matters, as Monitor
30may determine; and in determining the matters to which the assessment is to
relate, Monitor must have regard to such general guidance on carrying out
impact assessments as it considers appropriate.

(7) The assessment must specify the consultation period within which
representations with respect to the proposal may be made to Monitor; and for
35that purpose the consultation period must not be less than 28 days beginning
with the day after that on which the assessment is published under subsection
(4).

(8) Monitor may not implement the proposal unless the consultation period has
ended.

(9) 40Where Monitor is required (apart from this section) to consult about, or afford
a person an opportunity to make representations about, a proposal that comes
within subsection (1), the requirements of this section—

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

(b) may be met contemporaneously with it.

(10) 45Every annual report of Monitor must set out—

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

(b) a summary of the decisions taken during that year in relation to
proposals to which assessments carried out during that year or a
5previous financial year relate.

66 Information

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

(2) 10For the purposes of exercising a function under this Part, the Secretary of State
may request Monitor to provide the Secretary of State with such information
as the Secretary of State may specify.

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

67 Failure to perform functions

(1) 15This section applies if the Secretary of State considers that Monitor is failing, or
has failed, to perform any function of Monitor’s and that the failure is
significant.

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

(3) 20But the Secretary of State may not give a direction under subsection (2) in
relation to the performance of functions in a particular case.

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

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

(b) 25make arrangements for some other person to perform them on the
Secretary of State’s behalf.

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

(6) Reference in subsection (1) to failure to perform a function includes a reference
30to failure to perform it properly.

CHAPTER 2 Competition

68 Functions under the Competition Act 1998

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

(2) 35The functions are those that the Office of Fair Trading has under Part 1 of the
Competition Act 1998, other than sections 31D(1) to (6), 38(1) to (6) and 51, so
far as relating to any of the following which concern the provision of health
care services in England—

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

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

(c) 5agreements, decisions or concerted practices of the kind mentioned in
Article 101 of the Treaty on the Functioning of the European Union
(anti-competitive practices),

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

(3) 10So far as necessary for the purposes of subsections (1) and (2), references in Part
1 of the Competition Act 1998 to the Office of Fair Trading are to be read as
including references to Monitor, except in sections 31D(1) to (6), 38(1) to (6), 51,
52(6) and (8) and 54).

69 Functions under Part 4 of the Enterprise Act 2002

(1) 15The functions referred to in subsection (2) are concurrent functions of Monitor
and the Office of Fair Trading.

(2) The functions are those that the Office of Fair Trading has under Part 4 of the
Enterprise Act 2002 (market investigations), other than sections 166 and 171, so
far as relating to activities which concern the provision of health care services
20in England.

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

(4) 25Before the Office of Fair Trading or Monitor first exercises functions which are
exercisable concurrently by virtue of this section, it must consult the other.

(5) Neither the Office of Fair Trading nor Monitor may exercise in relation to any
matter functions which are exercisable concurrently by virtue of this section if
functions which are so exercisable have been exercised in relation to that
30matter by the other.

(6) Section 117 of the Enterprise Act 2002 (offences of supplying false or
misleading information) as applied by section 180 of that Act is to have effect
so far as relating to functions exercisable by Monitor by virtue of this section as
if the references in section 117(1)(a) and (2) to the Office of Fair Trading
35included references to Monitor.

70 Competition functions: supplementary

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

(2) 40Subject to subsection (3), sections 59 and 62 (general duties of Monitor) do not
apply in relation to anything done by Monitor in the carrying out of its
functions by virtue of section 68 or 69.

(3) In the carrying out of any functions by virtue of section 68 or 69, Monitor may
nevertheless have regard to any of the matters in respect of which a duty is

imposed by section 59 or 62 if it is a matter to which the Office of Fair Trading
is entitled to have regard in the carrying out of those functions.

(4) In section 9E of the Company Directors Disqualification Act 1986 (specified
regulators in cases of disqualification for competition infringements), in
5subsection (2) after paragraph (e) insert “;

(f) Monitor.”

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

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

(b) 10after that paragraph insert “; and

(h) Monitor.”

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

(a) in subsection (7) (meaning of “relevant sectoral enactment”), at the end
15insert—

“(i) in relation to Monitor, section 69 of the Health and Social
Care Act 2011.”,

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

(c) 20in that subsection, after “Utility Regulation” insert “or Monitor”.

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

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

“(o) modifying the conditions of a licence issued under
25section 86 of the Health and Social Care Act 2011.”,

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

“(q) in relation to any licence issued under section 86 of the
Health and Social Care Act 2011, the duties of Monitor
30under sections 59 and 62 of that Act.”, and

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

“(ia) Monitor;”.

71 Requirements as to procurement, patient choice and competition

(1) 35Regulations may impose requirements on the National Health Service
Commissioning Board and clinical commissioning groups for the purpose of
securing that, in commissioning health care services for the purposes of the
NHS, they—

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

(b) 40protect and promote the right of patients to make choices with respect
to treatment or other health care services provided for the purposes of
the NHS;

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

(2) 45Requirements imposed by regulations under this section apply to an
arrangement for the provision of goods and services only if the value of the

consideration attributable to the services is greater than that attributable to the
goods.

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

(a) 5competitive tendering for the provision of services;

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

(4) The regulations may provide for the requirements imposed, or such of them as
are prescribed, not to apply in relation to arrangements of a prescribed
10description.

72 Requirements under section 71: investigations, declarations and directions

(1) Regulations under section 71 may confer on Monitor—

(a) a power to investigate a complaint that the National Health Service
Commissioning Board or a clinical commissioning group has failed to
15comply with a requirement imposed by the regulations;

(b) a power to investigate on its own initiative whether the National Health
Service Commissioning Board or a clinical commissioning group has
failed to comply with a requirement imposed by virtue of section
71(1)(c);

(c) 20a power to require the Board or a clinical commissioning group to
provide it with such information as Monitor may specify for the
purposes of an investigation it carries out by virtue of paragraph (a) or
(b);

(d) a power to require the Board or a clinical commissioning group to
25provide an explanation of such information as it provides by virtue of
paragraph (c).

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

(3) 30Regulations under section 71 may confer on Monitor a power to declare that an
arrangement for the provision of health care services for the purposes of the
NHS is ineffective.

(4) The power conferred by virtue of subsection (3) is exercisable only in
prescribed circumstances and subject to prescribed restrictions and only where
35Monitor is satisfied that—

(a) the National Health Service Commissioning Board or a clinical
commissioning group has failed to comply with a requirement of
regulations under section 71, and

(b) the failure is sufficiently serious.

(5) 40On a declaration being made by virtue of subsection (3), the arrangement is
void; but that does not affect—

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

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

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

(6) Regulations under section 71 may confer on Monitor a power to direct the
National Health Service Commissioning Board or a clinical commissioning
group—

(a) to put in place measures for the purpose of preventing failures to
5comply with requirements imposed by the regulations or mitigating
the effect of such failures;

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

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

(d) 10to vary or withdraw an invitation to tender for the provision of health
care services;

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

(7) A failure to comply with a requirement imposed by regulations under section
1571 which causes loss or damage is actionable, except in so far as the regulations
restrict the right to bring such an action.

(8) Regulations under section 71 may—

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

(b) prevent a person who has brought such an action under the Public
20Contracts Regulations 2006 (S.I. 2006/5S.I. 2006/5) from bringing such an action
under the regulations under section 71 in respect of the whole or part
of the same loss or damage.

73 Requirements under section 71: undertakings

(1) Regulations under section 71 may confer on Monitor a power to accept an
25undertaking (referred to in this Chapter as a “section 73 undertaking”) from the
National Health Service Commissioning Board or a clinical commissioning
group to take such action of a kind mentioned in subsection (2) as is specified
in the undertaking within such period as is so specified.

(2) The specified action must be—

(a) 30action of a description given in paragraphs (a) to (e) of section 72(6), or

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

(3) Where Monitor accepts a section 73 undertaking then, unless the Board, or (as
the case may be) the clinical commissioning group from whom the
undertaking is accepted, has failed to comply with the undertaking or any part
35of it, Monitor may not—

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

(b) make a declaration by virtue of subsection (3) of section 72 in relation
to the arrangement in question, or

(c) give a direction by virtue of subsection (6) of that section in relation to
40the failure in question.

(4) Where the Board, or (as the case may be) the clinical commissioning group
from whom Monitor has accepted a section 73 undertaking, has failed to
comply fully with the undertaking but has complied with part of it, Monitor
must take the partial compliance into account in deciding whether to do
45something mentioned in paragraphs (a) to (c) of subsection (3).

(5) Schedule 9 (which makes further provision about section 73 undertakings) has
effect.

74 Guidance

(1) Monitor must publish guidance about—

(a) compliance with requirements imposed by regulations under section
71;

(b) 5how it intends to exercise powers conferred on it by regulations under
that section.

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

(a) the National Health Service Commissioning Board, and

(b) such other persons as Monitor considers appropriate.

(3) 10Before publishing guidance under subsection (1)(a) or (b), Monitor must obtain
the approval of the Secretary of State.

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

75 Mergers involving NHS foundation trusts

(1) 15Part 3 of the Enterprise Act 2002 (mergers) applies (in so far as it would not
otherwise) to each of the following cases as it applies to a case where two or
more enterprises have ceased to be distinct enterprises.

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

(3) 20The second case is where the activities of one or more NHS foundation trusts
and the activities of one or more businesses have ceased to be distinct activities.

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

(5) In this section, “enterprise” and “business” each have the same meaning as in
25Part 3 of the Enterprise Act 2002.

76 Reviews by the Competition Commission

(1) The Competition Commission must review—

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

(b) 30the exercise by Monitor of its functions under this Part in relation to the
provision of health care services for those purposes.

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

(3) In carrying out the review, the Commission must consider whether those
35matters have or may be expected to have any effects adverse to the public
interest.

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

(5) 40The Commission must send a copy of the report to—

(a) the Secretary of State,

(b) Monitor, and

(c) the National Health Service Commissioning Board.

(6) Where the Commission concludes that one or more of the matters it considered
in the review has or may be expected to have effects adverse to the public
5interest, it must include in the report its recommendations to the Secretary of
State, Monitor and the National Health Service Commissioning Board as to
how to remedy those effects.

(7) Each of those persons must reply to the Commission to say what the person
proposes to do in the light of the recommendations; the reply must be made
10before the end of the period of six months beginning with the day on which the
report was published.

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

(a) such information in Monitor’s possession as the Commission may
15require to enable it to carry out the review,

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

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

(9) 20The first review under this section must begin before the end of 2019.

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

(11) For the purposes of the law of defamation, absolute privilege attaches to a
25report under this section.

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

(a) after “an investigation” insert “or (in the case of the Health and Social
30Care Act 2011) a review”,

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

(c) after that paragraph insert “; or

(q) section 76 of the Health and Social Care Act 2011.”

77 Reviews under section 76: powers of investigation

(1) 35The following provisions of Part 3 of the Enterprise Act 2002 (mergers) apply,
with the modifications in subsections (2) to (8), for the purposes of the exercise
by the Competition Commission of its function under section 76(3) as they
apply for the purposes of investigations on references under that Part—

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

(b) 40section 110 (enforcement of powers under section 109: general),

(c) section 111 (penalties),

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

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

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

(g) 45section 115 (recovery of penalties),

(h) section 116 (statement of policy),