Health and Social Care Bill (HL Bill 92)

(c) after that sub-paragraph insert—

“(2) Subsections (1A), (1B) and (1D) of section 3 apply for the
purposes of sub-paragraph (1) as they apply for the purposes
of that section.”

(11) 5In paragraph 10—

(a) in sub-paragraph (1)(a) after “provided” insert “in pursuance of
arrangements made”,

(b) in sub-paragraph (2) —

(i) for “The Secretary of State may” substitute “The clinical
10commissioning group may make arrangements for”,

(ii) in paragraph (a) for “adapt” substitute “the adaptation of”,

(iii) in paragraph (b) for “maintain and repair” substitute “the
maintenance and repair of”,

(iv) in paragraph (c) for “take out” substitute “the taking out of”,

(v) 15in that paragraph for “pay” substitute “the payment of”,

(vi) in paragraph (d) for “provide” (in each place it occurs)
substitute “the provision of”, and

(vii) in that paragraph for “execute” substitute “the execution of”,

(c) in sub-paragraph (3) for “The Secretary of State” substitute “A clinical
20commissioning group”, and

(d) in sub-paragraph (5) for “the Secretary of State” substitute “the clinical
commissioning group”.

(12) In paragraph 12 (provision of a microbiological service)—

(a) in sub-paragraph (1)—

(i) 25omit paragraph (a) and the word “and” immediately following
it,

(ii) in paragraph (b) omit “other”, and

(iii) in that paragraph for “that service” substitute “a
microbiological service provided under section 2A”, and

(b) 30omit sub-paragraph (2).

(13) For paragraph 13 and the cross-heading preceding it substitute—

“Powers in relation to research etc.

(1) The Secretary of State, the Board or a clinical commissioning group
may conduct, commission or assist the conduct of research into—

(a) 35any matters relating to the causation, prevention, diagnosis
or treatment of illness, and

(b) any such other matters connected with any service provided
under this Act as the Secretary of State, the Board or the
clinical commissioning group (as the case may be) considers
40appropriate.

(2) A local authority may conduct, commission or assist the conduct of
research for any purpose connected with the exercise of its functions
in relation to the health service.

(3) The Secretary of State, the Board, a clinical commissioning group or
45a local authority may for any purpose connected with the exercise of
its functions in relation to the health service—

(a) obtain and analyse data or other information;

(b) obtain advice from persons with appropriate professional
expertise.

(4) The power under sub-paragraph (1) or (2) to assist any person to
5conduct research includes power to do so by providing financial
assistance or making the services of any person or other resources
available.

(5) In this paragraph, “local authority” has the same meaning as in
section 2B.”

15 10Regulations as to the exercise by local authorities of certain public health
functions

(1) After section 6B of the National Health Service Act 2006 insert—

“Regulations as to the exercise of functions

6C Regulations as to the exercise by local authorities of certain public
15health functions

(1) Regulations may require a local authority to exercise any of the public
health functions of the Secretary of State (so far as relating to the health
of the public in the authority’s area) by taking such steps as may be
prescribed.

(2) 20Regulations may require a local authority to exercise its public health
functions by taking such steps as may be prescribed.

(3) Where regulations under subsection (1) require a local authority to
exercise any of the public health functions of the Secretary of State, the
regulations may also authorise or require the local authority to exercise
25any prescribed functions of the Secretary of State that are exercisable in
connection with those functions (including the powers conferred by
section 12).

(4) The making of regulations under subsection (1) does not prevent the
Secretary of State from taking any step that a local authority is required
30to take under the regulations.

(5) Any rights acquired, or liabilities (including liabilities in tort) incurred,
in respect of the exercise by a local authority of any of its functions
under regulations under subsection (1) are enforceable by or against the
local authority (and no other person).

(6) 35In this section, “local authority” has the same meaning as in section 2B.”

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

“(zza) regulations under section 6C(1) or (2),”.

16 Regulations relating to EU obligations

After section 6C of the National Health Service Act 2006 insert—

“6D Regulations relating to EU obligations

(1) Regulations may require the Board or a clinical commissioning group
5to exercise a specified EU health function.

(2) In subsection (1)—

(a) “EU health function” means any function exercisable by the
Secretary of State for the purpose of implementing EU
obligations that concern, or are connected to, the health service,
10other than a function of making subordinate legislation (within
the meaning of the Interpretation Act 1978), and

(b) “specified” means specified in the regulations.

(3) The Secretary of State may give directions to the Board or a clinical
commissioning group about its exercise of any of its functions under
15regulations under subsection (1).

(4) The making of regulations under subsection (1) does not prevent the
Secretary of State from exercising the specified EU health function.

(5) Any rights acquired, or liabilities (including liabilities in tort) incurred,
in respect of the exercise by the Board or a clinical commissioning
20group of any of its functions under regulations under subsection (1) are
enforceable by or against the Board or (as the case may be) the group
(and no other person).

(6) The Secretary of State may, for the purpose of securing compliance by
the United Kingdom with EU obligations, give directions to the Board
25or a clinical commissioning group about the exercise of any of its
functions.”

17 Regulations as to the exercise of functions by the Board or clinical
commissioning groups

(1) After section 6D of the National Health Service Act 2006 insert—

“6E 30Regulations as to the exercise of functions by the Board or clinical
commissioning groups

(1) Regulations may impose requirements (to be known as “standing
rules”) in accordance with this section on the Board or on clinical
commissioning groups.

(2) 35The regulations may, in relation to the commissioning functions of the
Board or clinical commissioning groups, make provision—

(a) requiring the Board or clinical commissioning groups to
arrange for specified treatments or other specified services to be
provided or to be provided in a specified manner or within a
40specified period;

(b) as to the arrangements that the Board or clinical commissioning
groups must make for the purpose of making decisions as to—

(i) the treatments or other services that are to be provided;

(ii) the manner in which or period within which specified
45treatments or other specified services are to be provided;

(iii) the persons to whom specified treatments or other
specified services are to be provided;

(c) as to the arrangements that the Board or clinical commissioning
groups must make for enabling persons to whom specified
5treatments or other specified services are to be provided to
make choices with respect to specified aspects of them.

(3) Regulations by virtue of paragraph (b) of subsection (2) may, in
particular, make provision—

(a) requiring the Board or a clinical commissioning group to take
10specified steps before making decisions as to the matters
mentioned in that paragraph;

(b) as to reviews of, or appeals from, such decisions.

(4) The regulations may—

(a) specify matters for which provision must be made in
15commissioning contracts entered into by the Board or clinical
commissioning groups;

(b) require the Board to draft terms and conditions making
provision for those matters;

(c) require the Board or clinical commissioning groups to
20incorporate the terms and conditions drafted by virtue of
paragraph (b) in commissioning contracts entered into by the
Board or (as the case may be) clinical commissioning groups.

(5) The regulations must—

(a) require the Board to draft such terms and conditions as the
25Board considers are, or might be, appropriate for inclusion in
commissioning contracts entered into by the Board or clinical
commissioning groups (other than terms and conditions that
the Board is required to draft by virtue of subsection (4)(a));

(b) authorise the Board to require clinical commissioning groups to
30incorporate terms and conditions prepared by virtue of
paragraph (a) in their commissioning contracts;

(c) authorise the Board to draft model commissioning contracts.

(6) The regulations may require the Board to consult prescribed persons
before exercising any of its functions by virtue of subsection (4)(b) or
35(5).

(7) The regulations may require the Board or clinical commissioning
groups in the exercise of any of its or their functions—

(a) to provide information of a specified description to specified
persons in a specified manner;

(b) 40to act in a specified manner for the purpose of securing
compliance with EU obligations;

(c) to do such other things as the Secretary of State considers
necessary for the purposes of the health service.

(8) The regulations may not impose a requirement on only one clinical
45commissioning group.

(9) If regulations under this section are made so as to come into force on a
day other than 1 April, the Secretary of State must—

(a) publish a statement explaining the reasons for making the
regulations so as to come into force on such a day, and

(b) lay the statement before Parliament.

(10) In this section—

(a) 5“commissioning contracts”, in relation to the Board or clinical
commissioning groups, means contracts entered into by the
Board or (as the case may be) clinical commissioning groups in
the exercise of its or their commissioning functions;

(b) “commissioning functions”, in relation to the Board or clinical
10commissioning groups, means the functions of the Board or (as
the case may be) clinical commissioning groups in arranging for
the provision of services as part of the health service;

(c) “specified” means specified in the regulations.”

(2) In section 272 of that Act (orders, regulations, rules and directions), in
15subsection (6) after paragraph (zza) insert—

“(zzb) regulations under section 6E, except where they do not include
provision by virtue of subsection (7)(c) of that section,”.

18 Functions of Special Health Authorities

(1) Section 7 of the National Health Service Act 2006 (distribution of health service
20functions) is amended as follows.

(2) For subsection (1) substitute—

“(1) The Secretary of State may direct a Special Health Authority to exercise
any functions of the Secretary of State or any other person which relate
to the health service in England and are specified in the direction.

(1A) 25Before exercising the power in subsection (1) in relation to a function of
a person other than the Secretary of State, the Secretary of State must
consult that person.

(1B) Regulations may provide that a Special Health Authority specified in
the regulations is to have such additional functions in relation to the
30health service in England as may be so specified.”

(3) Omit subsections (2) and (3).

(4) For the heading to that section, and for the cross-heading preceding it,
substitute “Functions of Special Health Authorities”.

(5) In section 272 of that Act (orders, regulations, rules and directions), in
35subsection (6) after paragraph (zzb) insert—

“(zzc) regulations under section 7(1B),”.

19 Exercise of public health functions of the Secretary of State

After section 7 of the National Health Service Act 2006 insert—

“Exercise of Secretary of State’s public health functions

7A Exercise of Secretary of State’s public health functions

(1) 5The Secretary of State may arrange for a body mentioned in subsection
(2) to exercise any of the public health functions of the Secretary of
State.

(2) Those bodies are—

(a) the Board;

(b) 10a clinical commissioning group;

(c) a local authority (within the meaning of section 2B).

(3) The power conferred by subsection (1) includes power to arrange for
such a body to exercise any functions of the Secretary of State that are
exercisable in connection with those functions (including the powers
15conferred by section 12).

(4) Where the Secretary of State arranges (under subsection (1)) for the
Board to exercise a function, the Board may arrange for a clinical
commissioning group to exercise that function.

(5) Any rights acquired, or liabilities (including liabilities in tort) incurred,
20in respect of the exercise by a body mentioned in subsection (2) of any
function exercisable by it by virtue of this section are enforceable by or
against that body (and no other person).

(6) Powers under this section may be exercised on such terms as may be
agreed, including terms as to payment.”

25Further provision about the Board

20 The NHS Commissioning Board: further provision

(1) In Part 2 of the National Health Service Act 2006 (health service bodies), before
Chapter 1 insert—

“CHAPTER A1 The National Health Service Commissioning Board

30Secretary of State’s mandate to the Board

13A Mandate to Board

(1) Before the start of each financial year, the Secretary of State must
publish and lay before Parliament a document to be known as “the
mandate”.

(2) 35The Secretary of State must specify in the mandate—

(a) the objectives that the Secretary of State considers the Board
should seek to achieve in the exercise of its functions during

that financial year and such subsequent financial years as the
Secretary of State considers appropriate, and

(b) any requirements that the Secretary of State considers it
necessary to impose on the Board for the purpose of ensuring
5that it achieves those objectives.

(3) The Secretary of State must also specify in the mandate the amounts
that the Secretary of State has decided to specify in relation to the
financial year for the purposes of section 223D (2) and (3) (limits on
capital and revenue resource use).

(4) 10The Secretary of State may specify in the mandate any proposals that
the Secretary of State has as to the amounts that the Secretary of State
will specify in relation to subsequent financial years for the purposes of
section 223D (2) and (3).

(5) The Secretary of State may also specify in the mandate the matters by
15reference to which the Secretary of State proposes to assess the Board’s
performance in relation to the first financial year to which the mandate
relates.

(6) The Secretary of State may not specify in the mandate an objective or
requirement about the exercise of the Board’s functions in relation to
20only one clinical commissioning group.

(7) The Board must—

(a) seek to achieve the objectives specified in the mandate, and

(b) comply with any requirements so specified.

(8) Before specifying any objectives or requirements in the mandate, the
25Secretary of State must consult—

(a) the Board,

(b) the Healthwatch England committee of the Care Quality
Commission, and

(c) such other persons as the Secretary of State considers
30appropriate.

13B The mandate: supplemental provision

(1) The Secretary of State must keep the Board’s performance in achieving
any objectives or requirements specified in the mandate under review.

(2) If the Secretary of State varies the amount specified for the purposes of
35section 223D (2) or (3), the Secretary of State must revise the mandate
accordingly.

(3) The Secretary of State may make any other revision to the mandate only
if—

(a) the Board agrees to the revision,

(b) 40a parliamentary general election takes place, or

(c) the Secretary of State considers that there are exceptional
circumstances that make the revision necessary.

(4) If the Secretary of State revises the mandate, the Secretary of State
must—

(a) 45publish the mandate (as so revised), and

(b) lay it before Parliament, together with an explanation of the
reasons for making the revision.

General duties of the Board

13C Duty to promote NHS Constitution

(1) 5The Board must, in the exercise of its functions—

(a) act with a view to securing that health services are provided in
a way which promotes the NHS Constitution, and

(b) promote awareness of the NHS Constitution among patients,
staff and members of the public.

(2) 10In this section, “patients” and “staff” have the same meanings as in
Chapter 1 of Part 1 of the Health Act 2009 (see section 3(7) of that Act).

13D Duty as to effectiveness, efficiency etc.

The Board must exercise its functions effectively, efficiently and
economically.

13E 15Duty as to improvement in quality of services

(1) The Board must exercise its functions with a view to securing
continuous improvement in the quality of services provided to
individuals for or in connection with—

(a) the prevention, diagnosis or treatment of illness, or

(b) 20the protection or improvement of public health.

(2) In discharging its duty under subsection (1), the Board must, in
particular, act with a view to securing continuous improvement in the
outcomes that are achieved from the provision of the services.

(3) The outcomes relevant for the purposes of subsection (2) include, in
25particular, outcomes which show—

(a) the effectiveness of the services,

(b) the safety of the services, and

(c) the quality of the experience undergone by patients.

(4) In discharging its duty under subsection (1), the Board must have
30regard to—

(a) any document published by the Secretary of State for the
purposes of this section, and

(b) the quality standards prepared by NICE under section 231 of
the Health and Social Care Act 2011.

13F 35Duty as to promoting autonomy

In exercising its functions, the Board must, so far as is consistent with
the interests of the health service, act with a view to securing—

(a) that any other person exercising functions in relation to the
health service or providing services for its purposes is free to
40exercise those functions or provide those services in the manner
it considers most appropriate, and

(b) that unnecessary burdens are not imposed on any such person.

13G Duty as to reducing inequalities

The Board must, in the exercise of its functions, have regard to the need
to—

(a) reduce inequalities between patients with respect to their ability
5to access health services;

(b) reduce inequalities between patients with respect to the
outcomes achieved for them by the provision of health services.

13H Duty to promote involvement of each patient

The Board must, in the exercise of its functions, promote the
10involvement of patients, and their carers and representatives (if any), in
decisions about the provision of health services to the patients.

13I Duty as to patient choice

The Board must, in the exercise of its functions, act with a view to
enabling patients to make choices with respect to aspects of health
15services provided to them.

13J Duty to obtain appropriate advice

The Board must obtain advice appropriate for enabling it effectively to
discharge its functions from persons who (taken together) have a broad
range of professional expertise in—

(a) 20the prevention, diagnosis or treatment of illness, and

(b) the protection or improvement of public health.

13K Duty to promote innovation

(1) The Board must, in the exercise of its functions, promote innovation in
the provision of health services (including innovation in the
25arrangements made for their provision).

(2) The Board may make payments as prizes to promote innovation in the
provision of health services.

(3) A prize may relate to—

(a) work at any stage of innovation (including research);

(b) 30work done at any time (including work before the
commencement of section 20 of the Health and Social Care Act
2011).

13L Duty in respect of research

The Board must, in the exercise of its functions, have regard to the need
35to promote—

(a) research on matters relevant to the health service, and

(b) the use in the health service of evidence obtained from research.

13M Duty as to promoting integration

(1) The Board must exercise its functions with a view to securing that
40health services are provided in an integrated way where it considers
that this would—

(a) improve the quality of those services (including the outcomes
that are achieved from their provision),

(b) reduce inequalities between persons with respect to their ability
to access those services, or

(c) reduce inequalities between persons with respect to the
outcomes achieved for them by the provision of those services.

(2) 5The Board must exercise its functions with a view to securing that the
provision of health services is integrated with the provision of health-
related services or social care services where it considers that this
would—

(a) improve the quality of the health services (including the
10outcomes that are achieved from the provision of those
services),

(b) reduce inequalities between persons with respect to their ability
to access those services, or

(c) reduce inequalities between persons with respect to the
15outcomes achieved for them by the provision of those services.

(3) The Board must encourage clinical commissioning groups to enter into
arrangements with local authorities in pursuance of regulations under
section 75 where it considers that this would secure—

(a) that health services are provided in an integrated way and that
20this would have any of the effects mentioned in subsection
(1)(a) to (c), or

(b) that the provision of health services is integrated with the
provision of health-related services or social care services and
that this would have any of the effects mentioned in subsection
25(2)(a) to (c).

(4) In this section—

• “health-related services” means services that may have an effect
  on the health of individuals but are not health services or social
  care services;

• 30“social care services” means services that are provided in
  pursuance of the social services functions of local authorities
  (within the meaning of the Local Authority Social Services Act
  1970).

13N Duty to have regard to impact on services in certain areas

(1) 35In making commissioning decisions, the Board must have regard to the
likely impact of those decisions on the provision of health services to
persons who reside in an area of Wales or Scotland that is close to the
border with England.

(2) In this section, “commissioning decisions”, in relation to the Board,
40means decisions about the carrying out of its functions in arranging for
the provision of health services.

13O Duty as respects variation in provision of health services

The Board must not exercise its functions for the purpose of causing a
variation in the proportion of services provided as part of the health
45service that is provided by persons of a particular description if that
description is by reference to—

(a) whether the persons in question are in the public or (as the case
may be) private sector, or