Health and Social Care Bill (HL Bill 92)

(b) some other aspect of their status.

Public involvement

13P Public involvement and consultation by the Board

(1) This section applies in relation to any health services which are, or are
5to be, provided pursuant to arrangements made by the Board in the
exercise of its functions (“commissioning arrangements”).

(2) The Board must make arrangements to secure that individuals to
whom the services are being or may be provided are involved (whether
by being consulted or provided with information or in other ways)—

(a) 10in the planning of the commissioning arrangements by the
Board,

(b) in the development and consideration of proposals by the
Board for changes in the commissioning arrangements where
the implementation of the proposals would have an impact on
15the manner in which the services are delivered to the
individuals or the range of health services available to them,
and

(c) in decisions of the Board affecting the operation of the
commissioning arrangements where the implementation of the
20decisions would (if made) have such an impact.

(3) The reference in subsection (2)(b) to the delivery of services is a
reference to their delivery at the point when they are received by users.

Functions in relation to information

13Q Information on safety of services provided by the health service

(1) 25The Board must establish and operate systems for collecting and
analysing information relating to the safety of the services provided by
the health service.

(2) The Board must make information collected by virtue of subsection (1),
and any other information obtained by analysing it, available to such
30persons as the Board considers appropriate.

(3) The Board may impose charges, calculated on such basis as it considers
appropriate, in respect of information made available by it under
subsection (2).

(4) The Board must give advice and guidance, to such persons as it
35considers appropriate, for the purpose of maintaining and improving
the safety of the services provided by the health service.

(5) The Board must monitor the effectiveness of the advice and guidance
given by it under subsection (4).

(6) A clinical commissioning group must have regard to any advice or
40guidance given to it under subsection (4).

(7) The Board may arrange for any other person (including another NHS
body) to exercise any of the Board’s functions under this section.

(8) Arrangements made under subsection (7) do not affect the liability of
the Board for the exercise of any of its functions.

13R Guidance in relation to processing of information

(1) The Board must publish guidance for registered persons on the practice
5to be followed by them in relation to the processing of—

(a) patient information, and

(b) any other information obtained or generated in the course of the
provision of the health service.

(2) Registered persons who carry on an activity which involves, or is
10connected with, the provision of health care must have regard to any
guidance published under this section.

(3) In this section, “patient information”, “processing” and “registered
person” have the same meanings as in section 20A of the Health and
Social Care Act 2008.

15Business plan and report

13S Business plan

(1) Before the start of each financial year, the Board must publish a
business plan setting out how it proposes to exercise its functions in
that year and each of the next two financial years.

(2) 20The business plan must, in particular, explain how the Board proposes
to discharge its duties under—

(a) sections 13E and 13P, and

(b) sections 223C to 223E.

(3) The business plan must, in particular, explain how the Board proposes
25to achieve the objectives, and comply with the requirements, specified
in the mandate for the first financial year to which the plan relates.

(4) The Board may revise the plan.

(5) The Board must publish any revised plan.

13T Annual report

(1) 30As soon as practicable after the end of each financial year, the Board
must publish an annual report on how it has exercised its functions
during the year.

(2) The annual report must, in particular, contain an assessment of—

(a) the extent to which it met any objectives or requirements
35specified in the mandate for that year,

(b) the extent to which it gave effect to the proposals for that year
in its business plan, and

(c) how effectively it discharged its duties under sections 13E and
13P.

(3) 40The Board must—

(a) lay the annual report before Parliament, and

(b) once it has done so, send a copy of it to the Secretary of State.

(4) The Secretary of State must, having considered the annual report, set
out in a letter to the Board the Secretary of State’s assessment of the
Board’s performance of its functions in the financial year in question.

(5) The letter must, in particular, contain the Secretary of State’s
5assessment of the matters mentioned in subsection (2)(a) to (c).

(6) The Secretary of State must—

(a) publish the letter to the Board, and

(b) lay it before Parliament.

Additional powers

13U 10Establishment of pooled funds

(1) The Board and one or more clinical commissioning groups may
establish and maintain a pooled fund.

(2) A pooled fund is a fund—

(a) which is made up of contributions by the bodies which
15established it, and

(b) out of which payments may be made, with the agreement of
those bodies, towards expenditure incurred in the discharge of
any of their commissioning functions.

(3) In this section, “commissioning functions” means functions in
20arranging for the provision of services as part of the health service.

13V Board’s power to generate income, etc.

(1) The Board has power to do anything specified in section 7(2) of the
Health and Medicines Act 1988 (provision of goods, services, etc.) for
the purpose of making additional income available for improving the
25health service.

(2) The Board may exercise a power conferred by subsection (1) only to the
extent that its exercise does not to any significant extent interfere with
the performance by the Board of its functions.

13W Power to make grants etc.

(1) 30The Board may make payments by way of grant or loan to a voluntary
organisation which provides or arranges for the provision of services
which are similar to the services in respect of which the Board has
functions.

(2) The payments may be made subject to such terms and conditions as the
35Board considers appropriate.

13X Board’s incidental powers: further provision

The power conferred on the Board by section 2 includes in particular
power to—

(a) enter into agreements,

(b) 40acquire and dispose of property, and

(c) accept gifts (including property to be held on trust for the
purposes of the Board).

Exercise of functions of Board

13Y Exercise of functions

(1) This section applies to functions exercisable by the Board under or by
virtue of this Act or any prescribed provision of any other Act.

(2) 5The Board may arrange for any such function to be exercised by or
jointly with—

(a) a Special Health Authority,

(b) a clinical commissioning group, or

(c) such other body as may be prescribed.

(3) 10Regulations may provide that the power in subsection (2) does not
apply in relation to a function of a prescribed description.

(4) Where any functions are (by virtue of subsection (2)) exercisable jointly
by the Board and another body, they may be exercised by a joint
committee of the Board and the other body.

(5) 15Arrangements under this section may be on such terms and conditions
(including terms as to payment) as may be agreed between the Board
and the other party to the arrangements.

(6) Arrangements made under this section do not affect the liability of the
Board for the exercise of any of its functions.

20Power to confer additional functions

13Z Power to confer additional functions on the Board

(1) Regulations may provide that the Board is to have such additional
functions in relation to the health service as may be specified in the
regulations.

(2) 25A function may be specified in regulations under subsection (1) only if
the function is connected to another function of the Board.

Intervention powers

13Z1 Failure by the Board to discharge any of its functions

(1) The Secretary of State may give a direction to the Board if the Secretary
30of State considers that—

(a) the Board—

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

(ii) is failing or has failed properly to discharge any of its
35functions, and

(b) the failure is significant.

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

(3) 40If the Board 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) Where the Secretary of State exercises a power under subsection (1) or
5(3), the Secretary of State must publish the reasons for doing so.

Disclosure of information

13Z2 Permitted disclosures of information

(1) The Board may disclose information obtained by it in the exercise of its
functions if—

(a) 10the information has previously been lawfully disclosed to the
public,

(b) the disclosure is made under or pursuant to regulations under
section 113 or 114 of the Health and Social Care (Community
Health and Standards) Act 2003 (complaints about health care
15or social services),

(c) the disclosure is made in accordance with any enactment or
court order,

(d) the disclosure is necessary or expedient for the purposes of
protecting the welfare of any individual,

(e) 20the disclosure is made to any person in circumstances where it
is necessary or expedient for the person to have the information
for the purpose of exercising functions of that person under any
enactment,

(f) the disclosure is made for the purpose of facilitating the exercise
25of any of the Board’s functions,

(g) the disclosure is made in connection with the investigation of a
criminal offence (whether or not in the United Kingdom), or

(h) the disclosure is made for the purpose of criminal proceedings
(whether or not in the United Kingdom).

(2) 30This section has effect notwithstanding any rule of common law which
would otherwise prohibit or restrict the disclosure.

Interpretation

13Z3 Interpretation

(1) In this Chapter—

• 35“the health service” means the health service in England;

• “health services” means services provided as part of the health
  service and, in sections 13N and 13P, also includes services that
  are to be provided as part of the health service.

(2) Any reference (however expressed) in the following provisions of this
40Act to the functions of the Board includes a reference to the functions of
the Secretary of State that are exercisable by the Board by virtue of
arrangements under section 7A—

• section 6E(7) and (10)(b),

• section 13A(2),

• 45section 13C(1),

Health and Social Care BillPage 25

• section 13D,

• section 13E(1),

• section 13F,

• section 13G,

• 5section 13H,

• section 13I,

• section 13J,

• section 13K(1),

• section 13L,

• 10section 13M(1) and (2),

• section 13N(2),

• section 13P(1),

• section 13S(1),

• section 13T(1) and (4),

• 15section 13V(2),

• section 13W(1),

• section 13Z1(1),

• section 13Z2(1),

• section 72(1),

• 20section 75(1)(a) and (2),

• section 82,

• section 223C(2)(a),

• in Schedule A1, paragraph 13.

(3) Any reference (however expressed) in the following provisions of other
25Acts to the functions of the Board includes a reference to the functions
of the Secretary of State that are exercisable by the Board by virtue of
arrangements under section 7A—

• sections 116 to 116B of the Local Government and Public
  Involvement in Health Act 2007 (joint strategic needs
  30assessments etc.),

• section 194(6) of the Health and Social Care Act 2011 (participation
  of the Board in work of Health and Wellbeing Boards),

• section 196(4) of that Act (supply of information to Health and
  Wellbeing Boards),

• 35section 284(1) and (2) of that Act (duties to co-operate),

• section 285(2)(d) of that Act (breaches of duties to co-operate).

(4) The Secretary of State may by order amend the list of provisions
specified in subsection (2) or (3).”

(2) In section 272 of that Act (orders, regulations, rules and directions), in
40subsection (6) after paragraph (za) insert—

“(zb) regulations under section 13Z,”.

21 Financial arrangements for the Board

Before the cross-heading preceding section 224 of the National Health Service

Act 2006 insert—

“The Board

223B Funding of the Board

(1) The Secretary of State must pay to the Board in respect of each financial
5year sums not exceeding the amount allotted for that year by the
Secretary of State towards meeting the expenditure of the Board which
is attributable to the performance by it of its functions in that year.

(2) An amount is allotted to the Board for a financial year under this
section when the Board is notified in writing by the Secretary of State
10that the amount is allotted to it for that year.

(3) The Secretary of State may make a new allotment under this section
increasing or reducing the allotment previously so made only if—

(a) the Board agrees to the change,

(b) a parliamentary general election takes place, or

(c) 15the Secretary of State considers that there are exceptional
circumstances that make a new allotment necessary.

(4) The Secretary of State may give directions to the Board with respect to
the payment of sums by it to the Secretary of State in respect of charges
or other sums referable to the valuation or disposal of assets.

(5) 20Sums falling to be paid to the Board under this section are payable
subject to such conditions as to records, certificates or otherwise as the
Secretary of State may determine.

223BC Financial duties of the Board: expenditure

(1) The Board must ensure that total health expenditure in respect of each
25financial year does not exceed the aggregate of—

(a) the amount allotted to the Board for that year under section
223B,

(b) any sums received by the Board or clinical commissioning
groups in that year under any provision of this Act (other than
30sums received by the Board under section 223B or by clinical
commissioning groups under section 223G), and

(c) any sums received by the Board or clinical commissioning
groups in that year otherwise than under this Act for the
purpose of enabling it or them to defray such expenditure.

(2) 35In this section, “total health expenditure”, in relation to a financial year,
means—

(a) expenditure which is attributable to the performance by the
Board of its functions in that year, other than sums paid by it
under section 223G, and

(b) 40expenditure which is attributable to the performance by clinical
commissioning groups of their functions in that year.

(3) The Secretary of State may by directions determine whether
expenditure by the Board or a clinical commissioning group which is of
a description specified in the directions must, or must not, be treated
45for the purposes of this section as part of total health expenditure.

(4) The Secretary of State may by directions determine the extent to which,
and the circumstances in which, sums received by the Board or a
clinical commissioning group under section 223B or (as the case may
be) 223G but not yet spent must be treated for the purposes of this
5section as part of total health expenditure, and to which financial year’s
expenditure they must be attributed.

(5) The Secretary of State may by directions require the Board to use
banking facilities specified in the direction for any purposes so
specified.

223D 10Financial duties of the Board: controls on total resource use

(1) In this Chapter—

• “total capital resource use”, in relation to a financial year, means
  the use of capital resources in that year by the Board and clinical
  commissioning groups (taken together);

• 15“total revenue resource use”, in relation to a financial year, means
  the use of revenue resources in that year by the Board and
  clinical commissioning groups (taken together).

(2) The Board must ensure that total capital resource use in a financial year
does not exceed the amount specified by the Secretary of State.

(3) 20The Board must ensure that total revenue resource use in a financial
year does not exceed the amount specified by the Secretary of State.

(4) The Secretary of State may give directions, in relation to a financial
year, specifying descriptions of resources which must, or must not, be
treated as capital resources or revenue resources for the purposes of
25this Chapter.

(5) The Secretary of State may give directions, in relation to a financial
year, specifying uses of capital resources or revenue resources which
must not be taken into account for the purposes of this Chapter.

(6) The Secretary of State may give directions, in relation to a financial
30year, specifying uses of capital resources or revenue resources which
must be taken into account for the purposes of this section.

(7) The amount specified for the purposes of subsection (2) or (3) may be
varied only if—

(a) the Board agrees to the change,

(b) 35a parliamentary general election takes place, or

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

(8) Any reference in this Chapter to the use of capital resources or revenue
resources is a reference to their expenditure, consumption or reduction
40in value.

223E Financial duties of the Board: additional controls on resource use

(1) The Secretary of State may direct the Board to ensure that total capital
resource use in a financial year which is attributable to matters
specified in the direction does not exceed an amount so specified.

(2) The Secretary of State may direct the Board to ensure that total revenue
resource use in a financial year which is attributable to matters
specified in the direction does not exceed an amount so specified.

(3) The Secretary of State may direct the Board to ensure —

(a) 5that total revenue resource use in a financial year which is
attributable to such prescribed matters relating to
administration as are specified in the direction does not exceed
an amount so specified;

(b) that the Board’s use of revenue resources in a financial year
10which is attributable to such prescribed matters relating to
administration as are specified in the direction does not exceed
an amount so specified.

(4) The Secretary of State may give directions, in relation to a financial
year, specifying uses of capital resources or revenue resources which
15must, or must not, be taken into account for the purposes of subsection
(1) or (as the case may be) subsection (2) or (3).

(5) The Secretary of State may not give a direction under subsection (1) or
(2) unless the direction is for the purpose of complying with a limit
imposed by the Treasury.

223F 20Power to establish contingency fund

(1) The Board may use a proportion of the sums paid to it under section
223B to establish a contingency fund.

(2) The Board may make a payment out of the fund where the payment is
necessary in order to enable—

(a) 25the Board to discharge any of its commissioning functions, or

(b) a clinical commissioning group to discharge any of its
functions.

(3) The Board must publish guidance as to how it proposes to exercise its
powers to make payments out of the contingency fund.

(4) 30In this section, “commissioning functions” means functions in
arranging for the provision of services as part of the health service.”

Further provision about clinical commissioning groups

22 Clinical commissioning groups: establishment etc.

(1) After Chapter A1 of Part 2 of the National Health Service Act 2006 insert—

“CHAPTER A2 35Clinical commissioning groups

Establishment of clinical commissioning groups

14A General duties of Board in relation to clinical commissioning groups

(1) The Board must exercise its functions under this Chapter so as to ensure
that at any time after the day specified in writing by the Secretary of

State for the purposes of this section each provider of primary medical
services is a member of a clinical commissioning group.

(2) The Board must exercise its functions under this Chapter so as to ensure
that at any time after the day so specified the areas specified in the
5constitutions of clinical commissioning groups—

(a) together cover the whole of England, and

(b) do not coincide or overlap.

(3) For the purposes of this Chapter, “provider of primary medical
services” means a person who is a party to an arrangement mentioned
10in subsection (4).

(4) The arrangements mentioned in this subsection are—

(a) a general medical services contract to provide primary medical
services of a prescribed description,

(b) arrangements under section 83(2) for the provision of primary
15medical services of a prescribed description,

(c) section 92 arrangements for the provision of primary medical
services of a prescribed description.

(5) Where a person who is a provider of primary medical services is a party
to more than one arrangement mentioned in subsection (4), the person
20is to be treated for the purposes of this Chapter as a separate provider
of primary medical services in respect of each of those arrangements.

(6) Where two or more individuals practising in partnership are parties to
an arrangement mentioned in subsection (4), the partnership is to be
treated for the purposes of this Chapter as a provider of primary
25medical services (and the individuals are not to be so treated).

(7) Where two or more individuals are parties to an arrangement
mentioned in subsection (4) but are not practising in partnership, those
persons collectively are to be treated for the purposes of this Chapter as
a provider of primary medical services (and the individuals are not to
30be so treated).

14B Applications for the establishment of clinical commissioning groups

(1) An application for the establishment of a clinical commissioning group
may be made to the Board.

(2) The application may be made by any two or more persons each of
35whom—

(a) is or wishes to be a provider of primary medical services, and

(b) wishes to be a member of the clinical commissioning group.

(3) The application must be accompanied by—

(a) a copy of the proposed constitution of the clinical
40commissioning group,

(b) the name of the person whom the group wishes the Board to
appoint as its accountable officer (as to which see paragraph 11
of Schedule 1A), and

(c) such other information as the Board may specify in a document
45published for the purposes of this section.

(4) At any time before the Board determines the application—