Health and Social Care Bill (HL Bill 92)

(1C) The Welsh Ministers, the Scottish Ministers or the relevant Northern
Ireland department may request the Authority for advice on any matter
connected with accreditation of registers under section 25G other than
accreditation of registers referred to in subsection (1D); and the
5Authority must comply with such a request.

(1D) The registers are registers of persons who are or have been—

(a) unregulated social care workers in England,

(b) participating in studies for the purpose of becoming a member
of the social work profession in England;

(c) 10participating in studies for the purpose of becoming an
unregulated social care worker in England.

(1E) In subsection (1D), “the social work profession in England” and
“unregulated social care worker in England” each have the meaning
given in section 25E.”

(7) 15In section 26B of that Act (duty of the Authority to inform and consult the
public), after subsection (1) insert—

“(1A) The references in subsection (1) to the Authority’s functions do not
include a reference to its accreditation functions.

(1B) For the purpose of ensuring that members of the public are informed
20about the exercise by the Authority of its accreditation functions, the
Authority may publish or provide in such manner as it thinks fit
information about the exercise of those functions.

(1C) For the purposes of this section, the Authority’s accreditation functions
are—

(a) 25its functions under sections 25G to 25I,

(b) its functions under section 26 that relate to the performance of
voluntary registration functions (within the meaning given by
section 25I), and

(c) its function under section 26A(1B).”

(8) 30In subsection (2) of that section, after “subsection (1)” insert “or (1B)”.

(9) At the end of subsection (4) of that section insert “(other than its accreditation
functions)”.

Consequential provision etc.

227 Consequential provisions and savings, etc.

(1) 35Parts 1 to 3 of Schedule 16 (which contain minor and consequential
amendments and savings relating to the preceding provisions of this Part)
have effect.

(2) The Privy Council may by order make transitional, transitory or saving
provision in connection with the commencement of the preceding provisions
40of this Part.

(3) The quorum for the exercise of the power under subsection (2) is two.

(4) Anything done by the Privy Council under subsection (2) is sufficiently
signified by an instrument signed by the Clerk of the Council.

(5) In section 38 of the National Health Service Reform and Health Care
Professions Act 2002 (regulations and orders), after subsection (4) insert—

“(4A) The quorum for the exercise by the Privy Council of the power under
section 25A, 27 or 28 or paragraph 6 of Schedule 7 is two; and anything
5done by the Privy Council under either of those sections or that
paragraph is sufficiently signified by an instrument signed by the Clerk
of the Council.”

(6) The amendments made by this Part to an Order in Council under section 60 of
the Health Act 1999 do not affect the power to make a further Order in Council
10under that section amending or revoking provision made by those
amendments.

The Office of the Health Professions Adjudicator

228 Abolition of the Office of the Health Professions Adjudicator

(1) The Office of the Health Professions Adjudicator (“the OHPA”) is abolished.

(2) 15In Part 2 of the Health and Social Care Act 2008 (regulation of health
professions etc.), omit sections 98 to 110 and Schedules 6 and 7 (establishment
etc. of the OHPA).

(3) All property, rights and liabilities to which the OHPA is entitled or subject
immediately before the commencement of subsection (1) (including rights and
20liabilities relating to staff) are transferred to the Secretary of State.

(4) Part 4 of Schedule 16 (which contains consequential amendments and savings
in relation to the OHPA) has effect.

Part 8 The National Institute for Health and Care Excellence

25Establishment and general duties

229 The National Institute for Health and Care Excellence

(1) There is to be a body corporate known as the National Institute for Health and
Care Excellence (referred to in this Part as “NICE”).

(2) Schedule 17 (which makes further provision about NICE) has effect.

230 30General duties

(1) In exercising its functions NICE must have regard to—

(a) the broad balance between the benefits and costs of the provision of
health services or of social care in England,

(b) the degree of need of persons for health services or social care in
35England, and

(c) the desirability of promoting innovation in the provision of health
services or of social care in England.

(2) NICE must exercise its functions effectively, efficiently and economically.

(3) In this Part—

• “health services” means services which must or may be provided as part
  of the health service in England;

• “social care” includes all forms of personal care and other practical
  5assistance provided for individuals who by reason of age, illness,
  disability, pregnancy, childbirth, dependence on alcohol or drugs, or
  any other similar circumstances, are in need of such care or other
  assistance.

Functions: quality standards

231 10Quality standards

(1) The relevant commissioner may direct NICE to prepare statements of
standards in relation to the provision of—

(a) NHS services,

(b) public health services, or

(c) 15social care in England.

(2) In this Part such a statement is referred to as a “quality standard”.

(3) In preparing a quality standard NICE must consult the public and, for that
purpose, may publish drafts of the standard.

(4) NICE must keep a quality standard under review and may revise it as it
20considers appropriate.

(5) A quality standard (and any revised standard)—

(a) has no effect unless it is endorsed by the relevant commissioner, and

(b) must not be published by NICE unless the relevant commissioner so
requires.

(6) 25The relevant commissioner may require NICE—

(a) to publish the standard (or revised standard) or to disseminate it to
persons specified by the relevant commissioner, and

(b) to do so in the manner specified by the relevant commissioner.

(7) NICE must—

(a) 30establish a procedure for the preparation of quality standards, and

(b) consult such persons as it considers appropriate in establishing that
procedure.

(8) Subsection (9) applies in a case where the Secretary of State and the Board each
has power under this section to give NICE a direction to prepare a quality
35standard in relation to the same matter or connected matters.

(9) In such a case—

(a) the Secretary of State and the Board may issue a joint direction under
subsection (1), and

(b) if they do so, NICE must prepare a joint quality standard in respect of
40the matter or matters concerned.

(10) In this section “the relevant commissioner”—

(a) in relation to a quality standard in relation to the provision of NHS
services, means the Board, and

(b) in relation to a quality standard in relation to the provision of public
health services or of social care in England, means the Secretary of
State,

and a reference to the relevant commissioner in relation to a joint quality
5standard is a reference to both the Secretary of State and the Board.

(11) In this Part—

• “NHS services” means services the provision of which is arranged by the
  Board or a clinical commissioning group under the National Health
  Service Act 2006 (including pursuant to arrangements made under
  10section 7A of that Act);

• “public health services” means services provided pursuant to the
  functions of—

  (a)

  the Secretary of State under section 2A or 2B of, or paragraph
  7C, 8 or 12 of Schedule 1 to, that Act, or

  (b)

  15a local authority under section 2B or 111 of, or paragraphs 1 to
  7B or 13 of Schedule 1 to, that Act.

232 Supply of quality standards to other persons

(1) Regulations may confer powers on NICE in relation to the supply by NICE of
quality standards to—

(a) 20devolved authorities, and

(b) other persons (whether or not in the United Kingdom).

(2) The regulations may in particular—

(a) confer power on NICE to make such adjustments as NICE considers
appropriate to a quality standard for the purposes of supplying it as
25mentioned in subsection (1), and

(b) provide for the imposition by NICE of charges for or in connection with
the supply of a quality standard as so mentioned.

(3) Provision made under subsection (2)(b) may include provision for charges to
be calculated on the basis NICE considers to be the appropriate commercial
30basis.

(4) In this section “devolved authority” means—

(a) the Scottish Ministers,

(b) the Welsh Ministers, and

(c) the Department of Health, Social Services and Public Safety in
35Northern Ireland.

233 Advice or guidance to the Secretary of State or the Board

(1) NICE must give advice or guidance to the Secretary of State or the Board on
any quality matter referred to it by the Secretary of State or (as the case may be)
the Board.

(2) 40“Quality matter”—

(a) in relation to the Secretary of State, means any matter in relation to
which the Secretary of State has the power to direct NICE to prepare a
quality standard, and

(b) in relation to the Board, means any matter in relation to which the
45Board has the power to direct NICE to prepare a quality standard.

Functions: advice, guidance etc.

234 Advice, guidance, information and recommendations

(1) Regulations may confer functions on NICE in relation to the giving of advice
or guidance, provision of information or making of recommendations about
5any matter concerning or connected with the provision of—

(a) NHS services,

(b) public health services, or

(c) social care in England.

(2) The regulations may provide that a function conferred under subsection
10 (1)(a)—

(a) is only exercisable on the direction of the Secretary of State or the Board;

(b) is subject to directions given by the Secretary of State or (as the case
may be) the Board about NICE’s exercise of the function.

(3) The regulations may provide that a function conferred under subsection (1)(b)
15or (c)—

(a) is only exercisable on the direction of the Secretary of State;

(b) is subject to directions given by the Secretary of State about NICE’s
exercise of the function.

(4) Provision made under subsection (2)(b) or (3)(b) must not permit a direction to
20be given about the substance of advice, guidance or recommendations of
NICE.

(5) The regulations may make provision about—

(a) the persons who may request or require that advice, guidance,
information or recommendations be given, provided or (as the case
25may be) made by NICE,

(b) the publication or other dissemination of the advice, guidance,
information or recommendations (whether by NICE, the Secretary of
State or the Board), and

(c) the imposition by NICE of charges for or in connection with the giving
30of advice or guidance, provision of information or making of
recommendations.

(6) Provision made under subsection (5)(c) may include provision for charges to
be calculated on the basis NICE considers to be the appropriate commercial
basis.

(7) 35The regulations must make provision about—

(a) the establishment by NICE of procedures for the giving of advice or
guidance, provision of information or making of recommendations
under the regulations, and

(b) consultation by NICE in establishing the procedures.

(8) 40The regulations may make provision requiring specified health or social care
bodies, or health or social care bodies of a specified description, to—

(a) have regard to specified advice or guidance, or advice or guidance of a
specified description, given by NICE pursuant to the regulations;

(b) comply with specified recommendations, or recommendations of a
45specified description, made by NICE pursuant to the regulations.

(9) Provision made under subsection (8) may require a specified body, or bodies
of a specified description, to have regard to advice or guidance or to comply
with recommendations—

(a) generally in the exercise of functions, or

(b) 5in the exercise of specified functions or functions of a specified
description.

(10) In this section—

• “health or social care body” means any public body other than a local
  authority exercising functions in connection with the provision of
  10health services or of social care in England;

• “local authority” means—

  (a)

  a county council in England;

  (b)

  a district council in England, other than a council for a district
  in a county for which there is a county council;

  (c)

  15a London borough council;

  (d)

  the Council of the Isles of Scilly;

  (e)

  the Common Council of the City of London;

• ‘“public body” means a body or other person whose functions—

  (a)

  are of a public nature, or

  (b)

  20include functions of that nature,

  but, in the latter case, the body or person is a public body to the extent
  only of those functions;

• “specified” means specified in the regulations.

235 NICE recommendations: appeals

(1) 25Regulations under section 234 may make provision about appeals against
recommendations made by NICE pursuant to the regulations.

(2) The regulations may in particular include provision about—

(a) the types of recommendations in relation to which an appeal may be
brought,

(b) 30the persons who may bring an appeal,

(c) the grounds on which an appeal may be brought, and

(d) the persons by whom an appeal is to be heard.

236 Training

(1) Regulations may confer functions on NICE in relation to providing, or
35facilitating the provision of, training in connection with any matter concerning
or connected with the provision of—

(a) NHS services,

(b) public health services, or

(c) social care in England.

(2) 40The regulations may provide that a function conferred under subsection
(1)(a)—

(a) is only exercisable on the direction of the Board;

(b) is subject to directions given by the Board about NICE’s exercise of the
function.

(3) The regulations may provide that a function conferred under subsection (1)(b)
or (c)—

(a) is only exercisable on the direction of the Secretary of State;

(b) is subject to directions given by the Secretary of State about NICE’s
5exercise of the function.

(4) The regulations may provide for the imposition by NICE of charges for or in
connection with the provision, or the facilitation of the provision, of training.

(5) Provision made under subsection (4) may include provision for charges to be
calculated on the basis NICE considers to be the appropriate commercial basis.

237 10Advisory services

(1) Regulations may confer functions on NICE in relation to the giving of advice
to persons (whether or not in the United Kingdom) in relation to any matter
concerning or connected with—

(a) the provision of health care,

(b) 15the protection or improvement of public health, or

(c) the provision of social care.

(2) The regulations may make provision about the imposition of charges by NICE
for or in connection with the giving of such advice.

(3) Provision made under subsection (2) may include provision for charges to be
20calculated on the basis NICE considers to be the appropriate commercial basis.

(4) In this Part “health care” includes all forms of health care provided for
individuals whether relating to physical or mental health and also includes
procedures that are similar to forms of medical or surgical care but are not
provided in connection with a medical condition.

238 25Commissioning guidance

(1) The Board may direct NICE to exercise any of the Board’s functions in relation
to the preparation of the guidance required to be published by the Board under
section 14Z6 of the National Health Service Act 2006 (the “commissioning
guidance”).

(2) 30A direction under subsection (1) may direct NICE to exercise the functions in
such manner and within such period as may be specified in the direction.

(3) If requested to do so, NICE must—

(a) provide the Board with information or advice on such matters
connected to the Board’s functions in respect of the commissioning
35guidance as may be specified in the request, and

(b) disseminate the commissioning guidance to such persons and in such
manner as may be specified in the request.

Functions: other

239 NICE’s charter

(1) Regulations may make provision requiring NICE to publish a document
explaining the functions of NICE and how NICE intends to exercise them
5(referred to in this section as “the charter”).

(2) The regulations may, in particular, make provision about—

(a) the information to be provided in the charter,

(b) the timing of preparation of the charter,

(c) review and revision by NICE of the charter, and

(d) 10the manner in which the charter must or may be published.

240 Additional functions

(1) NICE may do any of the following—

(a) acquire, produce, manufacture and supply goods,

(b) acquire land by agreement and manage and deal with land,

(c) 15supply accommodation to any person,

(d) supply services to any person and provide new services,

(e) provide instruction for any person, and

(f) develop and exploit ideas and exploit intellectual property.

(2) But NICE may exercise a power under subsection (1) only—

(a) 20if doing so is connected with the provision of health care or social care,
and

(b) to the extent that its exercise does not to any significant extent interfere
with the performance by NICE of its functions.

(3) NICE may—

(a) 25charge for anything it does in the exercise of a power under
subsection (1), and

(b) calculate any such charge on the basis that it considers to be the
appropriate commercial basis.

241 Arrangements with other bodies

(1) 30NICE may arrange with any person or body to provide, or assist in providing,
any service which NICE is required or authorised to provide by virtue of this
Part.

(2) The power under this section may be exercised on such terms as may be
agreed, including terms as to the making of payments by or to NICE.

242 35Failure by NICE to discharge any of its functions

(1) The Secretary of State may give a direction to NICE if the Secretary of State
considers that—

(a) NICE—

(i) is failing or has failed to discharge any of its functions, or

(ii) 40is failing or has failed properly to discharge any of its functions,
and

(b) the failure is significant.

(2) A direction under subsection (1) may direct NICE to discharge such of those
functions, and in such manner and within such period or periods, as may be
specified in the direction.

(3) 5If NICE fails to comply with a direction under subsection (1), the Secretary of
State may—

(a) discharge the functions to which it relates, or

(b) make arrangements for any other person to discharge them on the
Secretary of State’s behalf.

(4) 10Where the Secretary of State exercises a power under subsection (1) or (3), the
Secretary of State must publish reasons for doing so.

243 Protection from personal liability

(1) Section 265 of the Public Health Act 1875 (which relates to the protection of
members and officers of certain authorities from personal liability) has effect as
15if there were included in the authorities referred to in that section a reference
to NICE.

(2) In its application to NICE as provided for by subsection (1), section 265 of that
Act has effect as if any reference in that section to the Public Health Act 1875
were a reference to this Act.

20Supplementary

244 Interpretation of this Part

In this Part—

• “the Board” means the National Health Service Commissioning Board;

• “health care” has the meaning given by section 237;

• 25“the health service” has the same meaning as in the National Health
  Service Act 2006 (see section 275(1) of that Act);

• “health services” has the meaning given by section 230;

• “NHS services” has the meaning given by section 231;

• “public health services” has the meaning given by section 231;

• 30“quality standard” has the meaning given by section 231;

• “social care” has the meaning given by section 230.

245 Dissolution of predecessor body

The Special Health Authority known as the National Institute for Health and
Clinical Excellence is abolished.

246 35Consequential and transitional provision

(1) Schedule 18 (which contains consequential provision) has effect.

(2) A statement of standards prepared and published by the Institute before
commencement is to be treated on and after commencement as if it were a
quality standard—

(a) 40prepared and published by NICE in accordance with section 231,

(b) endorsed under subsection (5) of that section, and

(c) in respect of which the transitional commissioner is the relevant
commissioner for the purposes of that section.

(3) Subsections (4) to (6) apply to a case where before commencement—

(a) 5the Secretary of State has referred a matter to the Institute for the
purpose of preparing and publishing a statement of standards, but

(b) the Institute has not published the statement.

(4) The referral by the Secretary of State to the Institute of the matter is to be
treated on and after commencement as if it were a direction given to NICE by
10the transitional commissioner for the preparation of a quality standard in
relation to that matter under section 231(1); and the transitional commissioner
is to be treated as the relevant commissioner for the purposes of that section.

(5) Anything done by the Institute before commencement in relation to the matter
is to be treated on and after commencement as having been done by NICE in
15pursuance of the direction.

(6) Consultation undertaken by the Institute before commencement in relation to
the matter is to be treated on and after commencement as if it were consultation
by NICE under section 231(3) in relation to the preparation of the quality
standard.

(7) 20A procedure established by the Institute before commencement for the
preparation of statements of standards is to be treated on and after
commencement as if it were a procedure established by NICE in accordance
with section 231(7) for the preparation of quality standards.

(8) For the purposes of this section “the transitional commissioner” is the Secretary
25of State; but the Secretary of State, after consulting the Board, may direct that
in relation to a particular statement of standards or matter the transitional
commissioner is—

(a) the Board, or

(b) both the Secretary of State and the Board.

(9) 30In this section—

• “commencement” means the commencement of section 231;

• “the Institute” means the Special Health Authority known as the National
  Institute for Health and Clinical Excellence;

• “statement of standards” means a document containing advice to the
  35Secretary of State in relation to the quality of the provision of health
  care prepared and published by the Institute pursuant to the directions
  given to the Institute by the Secretary of State on 27 July 2009.