Health and Social Care Bill (HL Bill 92)

(6) An instruction under subsection (5) may require the other party to
cease to exercise the function to such extent as the instruction specifies.

(7) The agreement may provide for the Secretary of State to pay
compensation to the other party in the event of an instruction such as is
5mentioned in subsection (6) being given.

(8) An instruction under subsection (5) may be given in such form as the
Secretary of State may determine.

(9) The Secretary of State must publish instructions under subsection (5) in
such form as the Secretary of State may determine; but that does not
10apply to an instruction such as is mentioned in subsection (6).

(10) An agreement under this section may provide for the Secretary of State
to make payments to the other party; and the Secretary of State may
make payments to other persons in connection with the exercise of an
approval function by virtue of this section.

12ZB 15Requirement to exercise approval functions: England

(1) The Secretary of State may impose a requirement on the National
Health Service Commissioning Board (“the Board”) or a Special Health
Authority for an approval function of the Secretary of State to be
exercisable by the Secretary of State concurrently—

(a) 20with the Board or (as the case may be) Special Health Authority,
and

(b) if an agreement under section 12ZA has effect, with the other
person by whom the function is exercisable under that
agreement.

(2) 25The Secretary of State may, in particular, require the body concerned to
exercise an approval function—

(a) in all circumstances or only in specified circumstances;

(b) in all areas or only in specified areas.

(3) The Secretary of State may require the body concerned to exercise an
30approval function—

(a) for a period specified in the requirement, or

(b) for a period determined in accordance with the requirement.

(4) Where a requirement under subsection (1) is imposed, the Board or (as
the case may be) Special Health Authority must comply with such
35instructions as the Secretary of State may give with respect to the
exercise of the approval function.

(5) An instruction under subsection (4) may be given in such form as the
Secretary of State may determine.

(6) The Secretary of State must publish instructions under subsection (4) in
40such form as the Secretary of State may determine.

(7) Where the Board or a Special Health Authority has an approval
function by virtue of this section, the function is to be treated for the
purposes of the National Health Service Act 2006 as a function that it
has under that Act.

(8) The Secretary of State may make payments in connection with the
exercise of an approval function by virtue of this section.

12ZC Provision of information for the purposes of section 12ZA or 12ZB

(1) A relevant person may provide another person with such information
5as the relevant person considers necessary or appropriate for or in
connection with—

(a) the exercise of an approval function; or

(b) the exercise by the Secretary of State of the power—

(i) to enter into an agreement under section 12ZA;

(ii) 10to impose a requirement under section 12ZB; or

(iii) to give an instruction under section 12ZA(5) or 12ZB(4).

(2) The relevant persons are—

(a) the Secretary of State;

(b) a person who is a party to an agreement under section 12ZA; or

(c) 15if the Secretary of State imposes a requirement under section
12ZB on the National Health Service Commissioning Board or a
Special Health Authority, the Board or (as the case may be)
Special Health Authority.

(3) This section, in so far as it authorises the provision of information by
20one relevant person to another relevant person, has effect
notwithstanding any rule of common law which would otherwise
prohibit or restrict the provision.

(4) In this section, “information” includes documents and records.”

(2) In section 54(1) of that Act (requirement for certain medical evidence etc. to be
25from practitioner approved under section 12 of the Act), after “the Secretary of
State” insert “, or by another person by virtue of section 12ZA or 12ZB above,”.

(3) In section 139(4) of that Act (protection for acts done in pursuance of the Act:
exceptions), at the end insert “or against a person who has functions under this
Act by virtue of section 12ZA in so far as the proceedings relate to the exercise
30of those functions”.

(4) In section 145(1) of that Act (interpretation), in the definition of “approved
clinician”, after “the Secretary of State” insert “or another person by virtue of
section 12ZA or 12ZB above”.

(5) In each of the following provisions, after “the Secretary of State” insert “, or by
35another person by virtue of section 12ZA or 12ZB of that Act,”—

(a) in section 8(2) of the Criminal Procedure (Insanity) Act 1964
(interpretation), in the definition of “duly approved”,

(b) in section 51(1) of the Criminal Appeal Act 1968 (interpretation), in the
definition of “duly approved”,

(c) 40in section 6(1) of the Criminal Procedure (Insanity and Unfitness to
Plead) Act 1991 (interpretation), in the definition of “duly approved”,

(d) in section 157(6) of the Criminal Justice Act 2003 (mentally disordered
offenders: definition of “medical report”),

(e) in section 172(1) of the Armed Forces Act 2006 (fitness to stand trial etc:
45definition of “duly approved”), and

(f) in section 258(5) of that Act (mentally disordered offenders), in the
definition of “medical report”.

36 Discharge of patients

(1) In section 23 of the Mental Health Act 1983 (discharge of patients), omit
subsections (3) and (3A).

(2) In section 24 of that Act (visiting and examination of patients), omit subsections
5(3) and (4).

(3) In Schedule 1 to that Act (application of certain provisions of that Act to
patients subject to hospital and guardianship orders)—

(a) in Part 1, in paragraph 1, omit “24(3) and (4),”, and

(b) in Part 2, in paragraph 1, omit “24(3) and (4),”.

(4) 10In consequence of the repeals made by this section—

(a) in the National Health Service and Community Care Act 1990, in
Schedule 9—

(i) omit paragraph 24(3)(a) and the “and” following it, and

(ii) omit paragraph 24(4),

(b) 15in the Health Authorities Act 1995, in Schedule 1, omit paragraph
107(2)(a) and (3),

(c) in the Care Standards Act 2000, in Schedule 4, omit paragraph 9(3),

(d) in the Health and Social Care (Community Health and Standards) Act
2003, in Schedule 4, omit paragraphs 53(a) and 54,

(e) 20in the Domestic Violence, Crime and Victims Act 2004—

(i) omit sections 37A(5), 38A(3), 43A(5) and 44A(3),

(ii) in section 37A(7)(a), omit “, (5)”, and

(iii) in section 43A(7), omit “, (5)”, and

(f) in the Mental Health Act 2007, in Schedule 3, omit paragraphs 10(5) and
25(6) and 11(3) and (4).

37 After-care

(1) Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.

(2) In subsection (2)—

(a) after “duty of the” insert “clinical commissioning group or”,

(b) 30omit “Primary Care Trust or” in each place it appears,

(c) for “and of the local social services authority” substitute “, and it shall
be the duty of the local social services authority,”,

(d) for “such time as the” substitute “such time as (in relation to England)
the clinical commissioning group or”,

(e) 35before “Local Health Board and the” insert “local social services
authority is satisfied that the person concerned is no longer in need of
such services or (in relation to Wales) the”,

(f) for “are satisfied that the person concerned is no longer in need of such
services” substitute “are so satisfied”, and

(g) 40for “they” substitute “it (in relation to England) or they (in relation to
Wales)”.

(3) In subsection (2C)—

(a) in paragraph (a), omit “or section 12A(4) of the National Health Service
Act 2006”, and

(b) after paragraph (b) insert “;

but see also subsection (2F)(b).”

(4) After subsection (2C) insert—

“(2D) Subsection (2) above, in its application to the clinical commissioning
5group, has effect as if—

(a) for “to provide” there were substituted “to arrange for the
provision of”; and

(b) the words “, in co-operation with relevant voluntary agencies,”
were omitted.

(2E) 10The duty imposed on the clinical commissioning group by subsection
(2) above applies only to services for the provision of which the group
has—

(a) a duty to arrange under section 3 of the National Health Service
Act 2006; or

(b) 15a power to arrange under section 3A of that Act.

(2F) The duty imposed on the clinical commissioning group by subsection
(2) above is to be regarded for all purposes as a duty imposed on it by
section 3 of that Act; and accordingly—

(a) references in any provision made by or under any Act to the
20provision of services under that section or that Act are to be
read as including a reference to the provision of services under
this section; and

(b) references in any provision made by or under this or any other
Act to the provision of services under this section are to be read
25in the light of this subsection.

(2G) The Secretary of State may by regulations provide that the duty
imposed on the clinical commissioning group by subsection (2) above
is, in the circumstances or to the extent prescribed by the regulations, to
be imposed instead on another clinical commissioning group or the
30National Health Service Commissioning Board.

(2H) Where regulations under subsection (2G) above provide that the duty
imposed by subsection (2) above is to be imposed on the National
Health Service Commissioning Board, subsections (2D) to (2F) above
have effect as if—

(a) 35references to the clinical commissioning group were references
to the National Health Service Commissioning Board; and

(b) subsection (2E) above were omitted.

(2I) Section 272(7) and (8) of the National Health Service Act 2006 applies to
the power to make regulations under subsection (2G) above as it
40applies to a power to make regulations under that Act.”

(5) In subsection (3)—

(a) after “section “the” insert “clinical commissioning group or”,

(b) omit “Primary Care Trust or” in each place it appears, and

(c) after “means the”, in the first place it appears, insert “clinical
45commissioning group or”.

(6) In consequence of the repeals made by subsections (2)(b) and (5)(b), omit
paragraph 47 of Schedule 2 to the National Health Service Reform and Health
Care Professions Act 2002.

38 Provision of pocket money for in-patients

(1) 5Section 122 of the Mental Health Act 1983 (provision of pocket money for in-
patients) is amended as follows.

(2) In subsection (1)—

(a) for “Secretary of State may” substitute “Welsh Ministers may (in
relation to Wales)”,

(b) 10for “he thinks fit” substitute “the Welsh Ministers think fit”,

(c) for “their” substitute “those persons’”,

(d) for “him” substitute “the Welsh Ministers”, and

(e) for “they” substitute “those persons”.

(3) In subsection (2)—

(a) 15omit “the National Health Service Act 2006 and”, and

(b) for “either of those Acts” substitute “that Act”.

(4) In section 146 of that Act (application to Scotland), omit “122,”.

39 Transfers to and from special hospitals

(1) Omit section 123 of the Mental Health Act 1983 (transfers to and from special
20hospitals).

(2) In section 68A of that Act (power to reduce periods after which cases must be
referred to tribunal), in subsection (4)—

(a) after paragraph (c), insert “or”,

(b) omit the “or” following paragraph (d), and

(c) 25omit paragraph (e).

(3) In section 138 of that Act (retaking of patients escaping from custody), in
subsection (4)(a), omit “or under section 123 above”.

(4) In consequence of the repeal made by subsection (1), omit paragraph 67 of
Schedule 4 to the Health Act 1999.

(5) 30This section does not affect—

(a) the authority for the detention of a person who is liable to be detained
under the Mental Health Act 1983 before the commencement of this
section,

(b) that Act in relation to any application, order or direction for admission
35or removal to a hospital made under that Act before that
commencement, or

(c) the authority for the retaking of a person who, before that
commencement, escapes while being taken to or from a hospital as
mentioned in section 138(4)(a) of that Act.

40 40Independent mental health advocates

(1) In section 130A of the Mental Health Act 1983 (independent mental health
advocates: England), in subsection (1)—

(a) for “The Secretary of State” substitute “A local social services authority
whose area is in England”, and

(b) at the end insert “for whom the authority is responsible for the
purposes of this section”.

(2) 5In subsection (4) of that section, for “the Secretary of State” substitute “a local
social services authority”.

(3) In section 130C of that Act (provision supplementary to section 130A), after
subsection (4) insert—

“(4A) A local social services authority is responsible for a qualifying patient
10if—

(a) in the case of a qualifying patient falling within subsection (2)(a)
above, the hospital or registered establishment in which he is
liable to be detained is situated in that authority’s area;

(b) in the case of a qualifying patient falling within subsection (2)(b)
15above, that authority is the responsible local social services
authority within the meaning of section 34(3) above;

(c) in the case of a qualifying patient falling within subsection
(2)(c), the responsible hospital is situated in that authority’s
area;

(d) 20in the case of a qualifying patient falling within subsection (3)—

(i) in a case where the patient has capacity or is competent
to do so, he nominates that authority as responsible for
him for the purposes of section 130A above, or

(ii) in any other case, a donee or deputy or the Court of
25Protection, or a person engaged in caring for the patient
or interested in his welfare, nominates that authority on
his behalf as responsible for him for the purposes of that
section.

(4B) In subsection (4A)(d) above—

(a) 30the reference to a patient who has capacity is to be read in
accordance with the Mental Capacity Act 2005;

(b) the reference to a donee is to a donee of a lasting power of
attorney (within the meaning of section 9 of that Act) created by
the patient, where the donee is acting within the scope of his
35authority and in accordance with that Act;

(c) the reference to a deputy is to a deputy appointed for the patient
by the Court of Protection under section 16 of that Act, where
the deputy is acting within the scope of his authority and in
accordance with that Act.”

(4) 40In Schedule 1 to the Local Authority Social Services Act 1970 (social services
functions), in the entry for the Mental Health Act 1983, at the appropriate place
insert—

41 Patients’ correspondence

(1) In section 134 of the Mental Health Act 1983 (patients’ correspondence), in
subsection (1)—

(a) before “the approved clinician” insert “or”, and

(b) 5omit “or the Secretary of State”.

(2) Subsection (1) of this section does not affect the validity of any requests made
to the Secretary of State under section 134(1) of that Act and having effect
immediately before the commencement of this section.

42 Notification of hospitals having arrangements for special cases

(1) 10In section 140 of the Mental Health Act 1983 (notification of hospitals having
arrangements for special cases)—

(a) after “the duty of” insert “every clinical commissioning group and of”,

(b) omit “every Primary Care Trust and of”,

(c) after “the area of the” insert “clinical commissioning group or”,

(d) 15omit “Primary Care Trust or” in the first place it appears,

(e) after “available to the” insert “clinical commissioning group or”, and

(f) omit “Primary Care Trust or” in the second place it appears.

(2) In consequence of the repeals made by this section, in the National Health
Service Reform and Health Care Professions Act 2002, in Schedule 2, omit
20paragraph 48(a) and (c).

Emergency powers

43 Role of the Board and clinical commissioning groups in respect of
emergencies

For the cross-heading preceding section 253 of the National Health Service Act
252006 substitute “Emergencies: role of the Secretary of State, the Board and
clinical commissioning groups” and after the cross-heading insert—

“252A Role of the Board and clinical commissioning groups in respect of
emergencies

(1) The Board and each clinical commissioning group must take
30appropriate steps for securing that it is properly prepared for dealing
with a relevant emergency.

(2) The Board must take such steps as it considers appropriate for securing
that each clinical commissioning group is properly prepared for
dealing with a relevant emergency.

(3) 35The steps taken by the Board under subsection (2) must include
monitoring compliance by each clinical commissioning group with its
duty under subsection (1).

(4) The Board must take such steps as it considers appropriate for securing
that each relevant service provider is properly prepared for dealing
40with a relevant emergency.

(5) The steps taken by the Board under subsection (4) must include
monitoring compliance by the service provider with any requirements

imposed on it by its service arrangements for the purpose of securing
that it is properly prepared for dealing with a relevant emergency.

(6) The Board may take such steps as it considers appropriate for
facilitating a co-ordinated response to an emergency by the clinical
5commissioning groups and relevant service providers for which it is a
relevant emergency.

(7) The Board may arrange for any body or person to exercise any
functions of the Board under subsections (2) to (6).

(8) Where the Board makes arrangements with another body or person
10under subsection (7) it may also arrange for that other body or person
to exercise any functions that the Board has, by virtue of being a
Category 1 responder, under Part 1 of the Civil Contingencies Act 2004.

(9) A relevant service provider must appoint an individual to be
responsible for—

(a) 15securing that the provider is properly prepared for dealing with
a relevant emergency,

(b) securing that the provider complies with any requirements
mentioned in subsection (5), and

(c) providing the Board with such information as it may require for
20the purpose of discharging its functions under this section.

(10) In this section—

• “relevant emergency”, in relation to the Board or a clinical
  commissioning group, means any emergency which might
  affect the Board or the group (whether by increasing the need
  25for the services that it may arrange or in any other way);

• “relevant emergency”, in relation to a relevant service provider,
  means any emergency which might affect the provider
  (whether by increasing the need for the services that it may
  provide or in any other way);

• 30“relevant service provider” means any body or person providing
  services in pursuance of service arrangements;

• “service arrangements”, in relation to a relevant service provider,
  means arrangements made by the Board or a clinical
  commissioning group under or by virtue of section 3, 3A, 3B, 4
  35or 7A or Schedule 1.”

44 Secretary of State’s emergency powers

(1) Section 253 of the National Health Service Act 2006 (emergency powers) is
amended as follows.

(2) In subsection (1) for the words from “it is necessary” to the end of the
40subsection substitute “it is appropriate to do so”.

(3) After subsection (1) insert—

“(1A) A direction under this section may be given to—

(a) an NHS body other than a Local Health Board;

(b) the National Institute for Health and Care Excellence;

(c) 45the Health and Social Care Information Centre;

(d) any body or person, other than an NHS body, providing
services in pursuance of arrangements made—

(i) by the Secretary of State under section 12,

(ii) by the Board or a clinical commissioning group under
5section 3, 3A, 3B or 4 or Schedule 1,

(iii) by a local authority for the purpose of the exercise of its
functions under or by virtue of section 2B or 6C(1) or
Schedule 1, or

(iv) by the Board, a clinical commissioning group or a local
10authority by virtue of section 7A.”

(4) For subsection (2) substitute—

“(2) In relation to a body within subsection (1A)(a) to (c), the powers
conferred by this section may be exercised—

(a) to give directions to the body about the exercise of any of its
15functions;

(b) to direct the body to cease to exercise any of its functions for a
specified period;

(c) to direct the body to exercise any of its functions concurrently
with another body or person for a specified period;

(d) 20to direct the body to exercise any function conferred on another
body or person under or by virtue of this Act for a specified
period (whether to the exclusion of, or concurrently with, that
body or person).

(2A) In relation to a body or person within subsection (1A)(d), the powers
25conferred by this section may be exercised—

(a) to give directions to the body or person about the provision of
any services that it provides in pursuance of arrangements
mentioned in subsection (1A)(d);

(b) to direct the body or person to cease to provide any of those
30services for a specified period;

(c) to direct the body or person to provide other services for the
purposes of the health service for a specified period.”

(5) After subsection (2A) insert—

“(2B) The Secretary of State may direct the Board to exercise the functions of
35the Secretary of State under this section.

(2C) The Secretary of State may give directions to the Board about its
exercise of any functions that are the subject of a direction under
subsection (2B).

(2D) In this section, “specified” means specified in the direction.”

(6) 40Omit subsection (4) (exclusion of NHS foundation trusts from application of
emergency powers).

(7) In section 273 of that Act (further provision about orders and directions under
the Act), in subsection (4)(c)(ii), for “or 120” substitute “, 120 or 253”.

Miscellaneous

45 New Special Health Authorities

(1) After section 28 of the National Health Service Act 2006 (special health
authorities) insert—

“28A 5Special Health Authorities: further provision

(1) This section applies in relation to an order under section 28 which is
made after the coming into force of section 45 of the Health and Social
Care Act 2011.

(2) The order must include—

(a) 10provision for the abolition of the Special Health Authority on a
day specified in the order, and

(b) provision as to the transfer of officers, property and liabilities of
the Authority on its abolition.

(3) The day specified in accordance with subsection (2)(a) must be within
15the period of 3 years beginning with the day on which the Special
Health Authority is established.

(4) The power (by virtue of section 273(1)) to vary an order under section
28 includes power to vary the provision mentioned in subsection (2)
by—

(a) 20providing for the abolition of the Special Health Authority on a
day which is earlier or later than the day for the time being
specified in the order;

(b) making different provision as to the matters mentioned in
subsection (2)(b).

(5) 25If an order is varied to provide for the abolition of the Special Health
Authority on a later day, that day must be within the period of 3 years
beginning with the day on which the Special Health Authority would
(but for the variation) have been abolished.”

(2) In section 272 of that Act (orders, regulations, rules and directions), in
30subsection (6), after paragraph (zb) insert—

“(zc) an order under section 28 which varies such an order as
mentioned in section 28A(5),”.

46 Primary care services: directions as to exercise of functions

(1) After section 98 of the National Health Service Act 2006 insert—

35“Directions

98A Exercise of functions

(1) The Secretary of State may direct the Board to exercise any of the
Secretary of State’s functions relating to the provision of primary
medical services.

(2) 40The Secretary of State may give directions to the Board about its
exercise of any functions relating to the provision of primary medical