Health and Social Care Bill (HL Bill 92)

(i) section 117 (offence of supplying false or misleading information), and

(j) section 125 (offences by bodies corporate) so far as relating to section
117.

(2) Section 110 has effect as if—

(a) 5subsection (2) were omitted,

(b) in subsection (4), for “the report of the Commission on the reference
concerned” there were substituted “the report of the Commission on
the review concerned”,

(c) for subsections (5) to (8) there were substituted—

“(5) 10Where the Commission considers that a person has
intentionally altered, suppressed or destroyed a document
which he has been required to produce under section 109, it
may impose a penalty in accordance with section 111.”, and

(d) in subsection (9), for the words from “or (3)” to “section 65(3))” there
15were substituted “, (3) or (5)”.

(3) Section 111 has effect as if—

(a) in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and

(b) in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.

(4) Section 111(5)(b)(ii) has effect as if—

(a) 20for “the reference concerned” there were substituted “the review
concerned”,

(b) the words “(or, in the case of a report under section 50 or 65, given)”
were omitted,

(c) the words “(or given)”, in each place they appear, were omitted, and

(d) 25the words “by this Part” were omitted.

(5) Section 112 has effect as if, in subsection (1), for “or (3)” there were substituted
“, (3) or (5)”.

(6) Section 114 has effect as if, in subsection (1), for “or (3)” there were substituted
“, (3) or (5)”.

(7) 30Section 115 has effect as if for “or (3)” there were substituted “, (3) or (5)”.

(8) Section 116 has effect as if, in subsection (2), for “or (3)” there were substituted
“, (3) or (5)”.

(9) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
purposes of sections 109 to 116 of that Act (including, in particular, provisions
35relating to the making of orders) have effect for the purposes of the application
of those sections by virtue of subsection (1) in relation to those sections as
applied by virtue of that subsection.

(10) Accordingly, corresponding provisions of this Act do not have effect in relation
to those sections as applied by virtue of this section.

78 40Reviews under section 76: considerations relevant to publication

(1) Before publishing a report under section 76, the Competition Commission
must have regard to the following considerations.

(2) The first consideration is the need to exclude from publication (so far as
practicable) information the publication of which the Commission considers
would be contrary to the public interest.

(3) The second consideration is the need to exclude from publication (so far as
5practicable)—

(a) commercial information the publication of which the Commission
considers would or might significantly harm the legitimate business
interests of a person to whom it relates, or

(b) information relating to the private affairs of an individual the
10publication of which the Commission considers might significantly
harm the individual’s interests.

(4) The third consideration is the extent to which publication of information
mentioned in subsection (3)(a) or (b) is necessary for the purposes of the report.

79 Co-operation with the Office of Fair Trading

(1) 15Monitor and the Office of Fair Trading must co-operate with each other in the
exercise of their respective functions under the Competition Act 1998 and the
Enterprise Act 2002.

(2) In particular each must give the other—

(a) such information in its possession as the other may require to enable it
20to exercise those functions,

(b) such other information in its possession as it considers would assist the
other in exercising those functions, and

(c) such other assistance as the other may require to assist it in exercising
those functions.

CHAPTER 3 25Licensing

Licensing requirement

80 Requirement for health service providers to be licensed

(1) Any person who provides a health care service for the purposes of the NHS
must hold a licence under this Chapter.

(2) 30Regulations may make provision for the purposes of this Chapter for
determining, in relation to a service provided by two or more persons acting in
different capacities, which of those persons is to be regarded as the person who
provides the service.

81 Deemed breach of requirement to be licensed

(1) 35This section applies where a licence holder—

(a) in providing a health care service for the purposes of the NHS, carries
on a regulated activity (within the meaning of Part 1 of the Health and
Social Care Act 2008), but

(b) is not registered under Chapter 2 of Part 1 of that Act in respect of the
40carrying on of that activity.

(2) The licence holder is to be regarded as providing the service in breach of the
requirement under section 80 to hold a licence.

82 Exemption regulations

(1) Regulations (referred to in this section and section 83 as “exemption
5regulations”) may provide for the grant of exemptions from the requirement
under section 80 in respect of—

(a) a prescribed person or persons of a prescribed description;

(b) the provision of a prescribed health care service or a health care service
of a prescribed description.

(2) 10Exemption regulations may grant an exemption—

(a) either generally or to the extent prescribed;

(b) either unconditionally or subject to prescribed conditions;

(c) indefinitely, for a prescribed period or for a period determined by or
under the exemption.

(3) 15Conditions subject to which an exemption may be granted include, in
particular, conditions requiring a person providing a service pursuant to the
exemption—

(a) to comply with any direction given by Monitor about such matters as
are specified in the exemption or are of a description so specified,

(b) 20except to the extent that Monitor otherwise approves, to do, or not to
do, such things as are specified in the exemption or are of a description
so specified (or to do, or not to do, such things in a specified manner),
and

(c) to refer for determination by Monitor such questions arising under the
25exemption as are specified in the exemption or are of a description so
specified.

(4) Before making exemption regulations the Secretary of State must give
notice to—

(a) Monitor,

(b) 30the National Health Service Commissioning Board, and

(c) the Care Quality Commission and its Healthwatch England committee.

(5) The Secretary of State must also publish the notice under subsection (4).

(6) The notice under subsection (4) must—

(a) state that the Secretary of State proposes to make exemption
35regulations and set out their proposed effect,

(b) set out the Secretary of State’s reasons for the proposal, and

(c) specify the period (“the notice period”) within which representations
with respect to the proposal may be made.

(7) The notice period must be not less than 28 days beginning with the day after
40that on which the notice is published under subsection (5).

(8) Where an exemption is granted to a person, the Secretary of State—

(a) must give the person notice of the exemption, and

(b) must publish the exemption.

83 Exemption regulations: supplementary

(1) Regulations may revoke exemption regulations by which an exemption was
granted to a person, or amend such regulations by which more than one
exemption was so granted so as to withdraw any of the exemptions—

(a) 5at the person’s request,

(b) in accordance with any provision of the exemption regulations by
which the exemption was granted, or

(c) if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect.

(2) 10Regulations may revoke exemption regulations by which an exemption was
granted to persons of a prescribed description, or amend such regulations by
which more than one exemption was so granted so as to withdraw any of the
exemptions—

(a) in accordance with any provision of the exemption regulations by
15which the exemption was granted, or

(b) if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect.

(3) The Secretary of State may by direction withdraw an exemption granted to
persons of a description prescribed in exemption regulations for any person of
20that description—

(a) at the person’s request,

(b) in accordance with any provision of the exemption regulations by
which the exemption was granted, or

(c) if the Secretary of State considers it to be inappropriate for the
25exemption to continue to have effect in the case of the person.

(4) Subsection (5) applies where the Secretary of State proposes to—

(a) make regulations under subsection (1)(b) or (c) or (2), or

(b) give a direction under subsection (3)(b) or (c).

(5) The Secretary of State must—

(a) 30consult the following about the proposal—

(i) Monitor;

(ii) the National Health Service Commissioning Board;

(iii) the Care Quality Commission and its Healthwatch England
committee;

(b) 35where the Secretary of State is proposing to make regulations under
subsection (1)(b) or (c), give notice of the proposal to the person to
whom the exemption was granted;

(c) where the Secretary of State is proposing to make regulations under
subsection (2), publish the notice;

(d) 40where the Secretary of State is proposing to give a direction under
subsection (3)(b) or (c), give notice of the proposal to the person from
whom the Secretary of State proposes to withdraw the exemption.

(6) The notice must—

(a) state that the Secretary of State proposes to make the regulations or give
45the direction (as the case may be),

(b) set out the Secretary of State’s reasons for the proposal, and

(c) specify the period within which representations with respect to the
proposal may be made.

(7) The period so specified must be not less than 28 days beginning with the day
after that on which the notice is received or (as the case may be) published.

Licensing procedure

84 Application for licence

(1) 5A person seeking to hold a licence under this Chapter must make an
application to Monitor.

(2) The application must be made in such form, and contain or be accompanied by
such information, as Monitor requires.

85 Licensing criteria

(1) 10Monitor must set and publish the criteria which must be met by a person in
order for that person to be granted a licence under this Chapter.

(2) Monitor may revise the criteria and, if it does so, must publish them as revised.

(3) Before setting or revising the criteria, Monitor must obtain the approval of the
Secretary of State.

86 15Grant or refusal of licence

(1) This section applies where an application for a licence has been made under
section 84.

(2) If Monitor is satisfied that the applicant meets the criteria for holding a licence
for the time being published under section 85 it must as soon as reasonably
20practicable grant the application; otherwise it must refuse it.

(3) On granting the application, Monitor must issue a licence to the applicant.

(4) A licence issued under this section is subject to—

(a) such of the standard conditions (see section 93) as are applicable to the
licence,

(b) 25such other conditions included in the licence by virtue of section 94
(referred to in this Chapter as “the special conditions”), and

(c) any conditions included in the licence by virtue of section 109
(imposition of licence conditions on NHS foundation trusts during
transitional period).

87 30Application and grant: NHS foundation trusts

(1) This section applies where an NHS trust becomes an NHS foundation trust
pursuant to section 36 of the National Health Service Act 2006 (effect of
authorisation of NHS foundation trust).

(2) The NHS foundation trust is to be treated by Monitor as having—

(a) 35duly made an application for a licence under section 84, and

(b) met the criteria for holding a licence for the time being published under
section 85.

(3) An NHS foundation trust in existence on the day on which this section comes
into force is to be treated for the purposes of this section as having become an

NHS foundation trust pursuant to section 36 of the National Health Service Act
2006 on that day.

88 Revocation of licence

Monitor may at any time revoke a licence under this Chapter—

(a) 5on the application of the licence holder, or

(b) if Monitor is satisfied that the licence holder has failed to comply with
a condition of the licence.

89 Right to make representations

(1) Monitor must give notice—

(a) 10to an applicant for a licence under this Chapter of a proposal to refuse
the application;

(b) to the licence holder of a proposal to revoke a licence under
section 88(b).

(2) A notice under this section must—

(a) 15set out Monitor’s reasons for its proposal;

(b) specify the period within which representations with respect to the
proposal may be made to Monitor.

(3) The period so specified must be not less than 28 days beginning with the day
after that on which the notice is received.

90 20Notice of decisions

(1) This section applies if Monitor decides to—

(a) refuse an application for a licence under section 86, or

(b) revoke a licence under section 88(b).

(2) Monitor must give notice of its decision to the applicant or the licence holder
25(as the case may be).

(3) A notice under this section must explain the right of appeal conferred by
section 91.

(4) A decision of Monitor to revoke a licence under section 88(b) takes effect on
such day as may be specified by Monitor, being a day no earlier than—

(a) 30if an appeal is brought under section 91, the day on which the decision
on the appeal is confirmed or the appeal is abandoned,

(b) where the licence holder notifies Monitor before the end of the period
for bringing an appeal under section 91 that the licence holder does not
intend to appeal, the day on which Monitor receives the notification, or

(c) 35the day after that period.

91 Appeals to the Tribunal

(1) An appeal lies to the First-tier Tribunal against a decision of Monitor to—

(a) refuse an application for a licence under section 86, or

(b) revoke a licence under section 88(b).

(2) 40The grounds for an appeal under this section are that the decision was—

(a) based on an error of fact,

(b) wrong in law, or

(c) unreasonable.

(3) On an appeal under this section, the First-tier Tribunal may—

(a) 5confirm Monitor’s decision,

(b) direct that the decision is not to have effect, or

(c) remit the decision to Monitor.

92 Register of licence holders

(1) Monitor must maintain and publish a register of licence holders.

(2) 10The register may contain such information as Monitor considers appropriate
for the purpose of keeping members of the public informed about licence
holders including, in particular, information about the revocation of any
licence under this Chapter.

(3) Monitor must secure that copies of the register are available at its offices for
15inspection at all reasonable times by any person.

(4) Any person who asks Monitor for a copy of, or an extract from, the register is
entitled to have one.

(5) Regulations may provide that subsections (3) and (4) do not apply—

(a) in such circumstances as may be prescribed, or

(b) 20to such parts of the register as may be prescribed.

(6) A fee determined by Monitor is payable for the copy or extract except—

(a) in such circumstances as may be prescribed, or

(b) in any case where Monitor considers it appropriate to provide the copy
or extract free of charge.

25Licence conditions

93 Standard conditions

(1) Monitor must determine and publish the conditions to be included in each
licence under this Chapter (referred to in this Chapter as “the standard
conditions”).

(2) 30Different standard conditions may be determined for different descriptions of
licences.

(3) For the purposes of subsection (2) a description of licences may in particular be
framed wholly or partly by reference to—

(a) the nature of the licence holder,

(b) 35the services provided under the licence, or

(c) the areas in which those services are provided.

(4) But different standard conditions must not be determined for different
descriptions of licences to the extent that the description is framed by reference
to the nature of the licence holder unless Monitor considers that at least one of
40requirements 1 and 2 is met.

(5) Requirement 1 is that—

(a) the standard conditions in question relate to the governance of licence
holders, and

(b) it is necessary to determine different standard conditions in order to
take account of differences in the status of different licence holders.

(6) 5Requirement 2 is that it is necessary to determine different standard conditions
for the purpose of ensuring that the burdens to which different licence holders
are subject as a result of holding a licence are broadly consistent.

(7) Before determining the first set of the standard conditions Monitor must
consult the persons mentioned in subsection (8) on the conditions it is
10proposing to determine (“the draft standard conditions”).

(8) Those persons are—

(a) the Secretary of State,

(b) the National Health Service Commissioning Board,

(c) every clinical commissioning group,

(d) 15the Care Quality Commission and its Healthwatch England committee,
and

(e) such other persons as are likely to be affected by the inclusion of the
conditions in licences under this Chapter as Monitor considers
appropriate.

(9) 20Monitor must also publish the draft standard conditions.

(10) The Secretary of State may direct Monitor not to determine that the standard
conditions will be the draft standard conditions.

94 Special conditions

(1) Monitor may—

(a) 25with the consent of the applicant, include a special condition in a
licence under this Chapter, and

(b) with the consent of the licence holder, modify a special condition of a
licence.

(2) Before including a special condition or making such modifications Monitor
30must give notice to—

(a) the applicant or the licence holder (as the case may be),

(b) the Secretary of State,

(c) the National Health Service Commissioning Board,

(d) such clinical commissioning groups as are likely to be affected by the
35proposed inclusion or modifications, and

(e) the Care Quality Commission and its Healthwatch England committee.

(3) Monitor must also publish the notice under subsection (2).

(4) The notice under subsection (2) must—

(a) state that Monitor proposes to include the special condition or make the
40modifications and set out its or their proposed effect,

(b) set out Monitor’s reasons for the proposal, and

(c) specify the period (“the notice period”) within which representations
with respect to the proposal may be made to Monitor.

(5) The notice period must be not less than 28 days beginning with the day after
that on which the notice is published under subsection (3).

(6) In this section, a reference to modifying a condition includes a reference to
amending, omitting or adding a condition.

95 5Limits on Monitor’s functions to set or modify licence conditions

(1) This section applies to the following functions of Monitor—

(a) the duty to determine the standard conditions to be included in each
licence under this Chapter or in licences of a particular description (see
section 93),

(b) 10the powers to include a special condition in a licence and to modify
such a condition (see section 94),

(c) the power to modify the standard conditions applicable to all licences,
or to licences of a particular description (see section 98).

(2) Monitor may only exercise a function to which this section applies—

(a) 15for the purpose of regulating the price payable for the provision of
health care services for the purposes of the NHS;

(b) for the purpose of preventing anti-competitive behaviour in the
provision of health care services for those purposes which is against the
interests of people who use such services;

(c) 20for the purpose of protecting and promoting the right of patients to
make choices with respect to treatment or other health care services;

(d) for the purpose of ensuring the continued provision of health care
services for the purposes of the NHS;

(e) for purposes connected with the governance of persons providing
25health care services for the purposes of the NHS;

(f) for purposes connected with Monitor’s functions in relation to the
register of NHS foundation trusts required to be maintained under
section 39 of the National Health Service Act 2006;

(g) for purposes connected with the operation of the licensing regime
30established by this Chapter;

(h) for such purposes as may be prescribed for the purpose of enabling
Monitor to discharge its duties under section 59.

(3) Monitor must not exercise a function to which this section applies in a way
which it considers would result in a particular licence holder or holders of
35licences of a particular description being put at an unfair advantage or
disadvantage in competing with others in the provision of health care services
for the purposes of the NHS as a result of—

(a) being in the public or (as the case may be) private sector, or

(b) some other aspect of its or their status.

96 40Conditions: supplementary

(1) The standard or special conditions of a licence under this Chapter may in
particular include conditions—

(a) requiring the licence holder to pay to Monitor such fees of such
amounts as Monitor may determine in respect of the exercise by
45Monitor of its functions under this Chapter,

(b) requiring the licence holder to comply with any requirement imposed
on it by Monitor under Chapter 6 (financial assistance in health special
administration cases),

(c) requiring the licence holder to do, or not to do, specified things or
5things of a specified description (or to do, or not to do, any such things
in a specified manner) within such period as may be specified in order
to prevent anti-competitive behaviour in the provision of health care
services for the purposes of the NHS which is against the interests of
people who use such services,

(d) 10requiring the licence holder to give notice to the Office of Fair Trading
before entering into an arrangement under which, or a transaction in
consequence of which, the licence holder’s activities, and the activities
of one or more other businesses, cease to be distinct activities,

(e) requiring the licence holder to provide Monitor with such information
15as Monitor considers necessary for the purposes of the exercise of its
functions under this Part,

(f) requiring the licence holder to publish such information as may be
specified or as Monitor may direct,

(g) requiring the licence holder to charge for the provision of health care
20services for the purposes of the NHS in accordance with the national
tariff (see section 114),

(h) requiring the licence holder to comply with other rules published by
Monitor about the charging for the provision of health care services for
the purposes of the NHS,

(i) 25requiring the licence holder—

(i) to do, or not to do, specified things or things of a specified
description (or to do, or not to do, any such things in a specified
manner) within such period as may be specified in order to
ensure the continued provision of one or more of the health care
30services that the licence holder provides for the purposes of the
NHS,

(ii) to give Monitor notice (of such period as may be determined by
or under the licence) of the licence holder’s intention to cease
providing a health care service for the purposes of the NHS, and

(iii) 35if Monitor so directs, to continue providing that service for a
period determined by Monitor,

(j) about the use or disposal by the licence holder of assets used in the
provision of health care services for the purposes of the NHS, and

(k) about the making by the licence holder of investment in relation to the
40provision of health care services for the purposes of the NHS.

(2) In subsection (1) “specified” means specified in a condition.

(3) Monitor must not include a condition under subsection (1)(c) that requires the
licence holder (A) to provide another licence holder with access to facilities of
A.

(4) 45A condition under subsection (1)(d)—

(a) may be included only in the licence of an NHS foundation trust or a
body which (or part of which) used to be an NHS trust established
under section 25 of the National Health Service Act 2006, and

(b) ceases to have effect at the end of the period of five years beginning
50with the day on which it is included in the licence.