Health and Social Care Bill (HL Bill 119)

(12) In paragraph 19A of Schedule 7 to the Competition Act 1998 (duty of Chairman
to make rules of procedure), in the definition of “special reference group” in
sub-paragraph (9)—

(a) after “an investigation” insert “or (in the case of the Health and Social
5Care Act 2012) a review”,

(b) omit the “or” preceding paragraph (p), and

(c) after that paragraph insert “; or

(q) section 78 of the Health and Social Care Act 2012.”

79 Reviews under section 78: powers of investigation

(1) 10The following provisions of Part 3 of the Enterprise Act 2002 (mergers) apply,
with the modifications in subsections (2) to (8), for the purposes of the exercise
by the Competition Commission of its function under section 78(3) as they
apply for the purposes of investigations on references under that Part—

(a) section 109 (attendance of witnesses and production of documents),

(b) 15section 110 (enforcement of powers under section 109: general),

(c) section 111 (penalties),

(d) section 112 (penalties: main procedural requirements),

(e) section 113 (payments and interest by instalments),

(f) section 114 (appeals in relation to penalties),

(g) 20section 115 (recovery of penalties),

(h) section 116 (statement of policy),

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

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

(2) 25Section 110 has effect as if—

(a) subsection (2) were omitted,

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

(c) 30for subsections (5) to (8) there were substituted—

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

(d) 35in subsection (9), for the words from “or (3)” to “section 65(3))” there
were substituted “, (3) or (5)”.

(3) Section 111 has effect as if—

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

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

(4) 40Section 111(5)(b)(ii) has effect as if—

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

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

(c) 45the words “(or given)”, in each place they appear, were omitted, and

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

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

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

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

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

(9) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
purposes of sections 109 to 116 of that Act (including, in particular, provisions
10relating to the making of orders) have effect for the purposes of the application
of those sections by virtue of subsection (1) in relation to those sections as
applied by virtue of that subsection.

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

80 15Reviews under section 78: considerations relevant to publication

(1) Before publishing a report under section 78, the Competition Commission
must have regard to the following considerations.

(2) The first consideration is the need to exclude from publication (so far as
practicable) information the publication of which the Commission considers
20would be contrary to the public interest.

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

(a) commercial information the publication of which the Commission
considers would or might significantly harm the legitimate business
25interests of a person to whom it relates, or

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

(4) The third consideration is the extent to which publication of information
30mentioned in subsection (3)(a) or (b) is necessary for the purposes of the report.

81 Co-operation with the Office of Fair Trading

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

(2) 35In particular each must give the other—

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

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

(c) 40such other assistance as the other may require to assist it in exercising
those functions.

CHAPTER 3 Licensing

Licensing requirement

82 Requirement for health service providers to be licensed

(1) Any person who provides a health care service for the purposes of the NHS
5must hold a licence under this Chapter.

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

83 10Deemed breach of requirement to be licensed

(1) This section applies where a licence holder—

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

(b) 15is not registered under Chapter 2 of Part 1 of that Act in respect of the
carrying on of that activity.

(2) The licence holder is to be regarded as providing the service in breach of the
requirement under section 82 to hold a licence.

84 Exemption regulations

(1) 20Regulations (referred to in this section and section 85 as “exemption
regulations”) may provide for the grant of exemptions from the requirement
under section 82 in respect of—

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

(b) the provision of a prescribed health care service or a health care service
25of a prescribed description.

(2) Exemption regulations may grant an exemption—

(a) either generally or to the extent prescribed;

(b) either unconditionally or subject to prescribed conditions;

(c) indefinitely, for a prescribed period or for a period determined by or
30under the exemption.

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

(a) to comply with any direction given by Monitor about such matters as
35are specified in the exemption or are of a description so specified,

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

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

(4) Before making exemption regulations the Secretary of State must give
5notice to—

(a) Monitor,

(b) the National Health Service Commissioning Board, and

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

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

(6) 10A notice under subsection (4) must—

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

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

(c) specify the period (“the notice period”) within which representations
15with respect to the proposal may be made.

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

(8) Where an exemption is granted the Secretary of State—

(a) if the exemption is granted to a prescribed person, must give notice of
20it to that person, and

(b) must publish the exemption.

85 Exemption regulations: supplementary

(1) Regulations may revoke exemption regulations by which an exemption was
granted to a person, or amend such regulations by which more than one
25exemption was so granted so as to withdraw any of the exemptions—

(a) at the person’s request,

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

(c) if the Secretary of State considers it to be inappropriate for the
30exemption to continue to have effect.

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

(a) 35in accordance with any provision of the exemption regulations by
which the exemption was granted, or

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

(3) The Secretary of State may by direction withdraw an exemption granted to
40persons of a description prescribed in exemption regulations for any person of
that description—

(a) at the person’s request,

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

(c) 45if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect in the case of the person.

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

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

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

(5) The Secretary of State must—

(a) 5consult the following about the proposal—

(i) Monitor;

(ii) the National Health Service Commissioning Board;

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

(b) 10where the Secretary of State is proposing to make regulations under
subsection (1)(b) or (c), give notice of the proposal to the person to
whom the exemption was granted;

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

(d) 15where the Secretary of State is proposing to give a direction under
subsection (3)(b) or (c), give notice of the proposal to the person from
whom the Secretary of State proposes to withdraw the exemption.

(6) The notice must—

(a) state that the Secretary of State proposes to make the regulations or give
20the direction (as the case may be),

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

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

(7) The period so specified must be not less than 28 days beginning with the day
25after that on which the notice is received or (as the case may be) published.

Licensing procedure

86 Application for licence

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

(2) 30The application must be made in such form, and contain or be accompanied by
such information, as Monitor requires.

87 Licensing criteria

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

(2) 35Monitor may revise the criteria and, if it does so, must publish them as revised.

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

88 Grant or refusal of licence

(1) This section applies where an application for a licence has been made under
40section 86.

(2) If Monitor is satisfied that the applicant meets the criteria for holding a licence
for the time being published under section 87 it must as soon as reasonably
practicable grant the application; otherwise it must refuse it.

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

(4) 5A licence issued under this section is subject to—

(a) such of the standard conditions (see section 95) as are applicable to the
licence,

(b) such other conditions included in the licence by virtue of section 96
(referred to in this Chapter as “the special conditions”), and

(c) 10any conditions included in the licence by virtue of section 111
(imposition of licence conditions on NHS foundation trusts during
transitional period).

89 Application and grant: NHS foundation trusts

(1) This section applies where an NHS trust becomes an NHS foundation trust
15pursuant to section 36 of the National Health Service Act 2006 (effect of
authorisation of NHS foundation trust).

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

(a) duly made an application for a licence under section 86, and

(b) met the criteria for holding a licence for the time being published under
20section 87.

(3) An NHS foundation trust in existence on the day on which this section comes
into force is to be treated for the purposes of this section as having become an
NHS foundation trust pursuant to section 36 of the National Health Service Act
2006 on that day.

90 25Revocation of licence

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

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

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

91 30Right to make representations

(1) Monitor must give notice—

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

(b) to the licence holder of a proposal to revoke a licence under
35section 90(b).

(2) A notice under this section must—

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

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

(3) 40The period so specified must be not less than 28 days beginning with the day
after that on which the notice is received.

92 Notice of decisions

(1) This section applies if Monitor decides to—

(a) refuse an application for a licence under section 88, or

(b) revoke a licence under section 90(b).

(2) 5Monitor must give notice of its decision to the applicant or the licence holder
(as the case may be).

(3) A notice under this section must explain the right of appeal conferred by
section 93.

(4) A decision of Monitor to revoke a licence under section 90(b) takes effect on
10such day as may be specified by Monitor, being a day no earlier than—

(a) if an appeal is brought under section 93, the day on which the decision
on appeal is confirmed or the appeal is abandoned,

(b) where the licence holder notifies Monitor before the end of the period
for bringing an appeal under section 93 that the licence holder does not
15intend to appeal, the day on which Monitor receives the notification, or

(c) the day after that period.

93 Appeals to the Tribunal

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

(a) refuse an application for a licence under section 88, or

(b) 20revoke a licence under section 90(b).

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

(a) based on an error of fact,

(b) wrong in law, or

(c) unreasonable.

(3) 25On an appeal under this section, the First-tier Tribunal may—

(a) confirm Monitor’s decision,

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

(c) remit the decision to Monitor.

94 Register of licence holders

(1) 30Monitor must maintain and publish a register of licence holders.

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

(3) 35Monitor must secure that copies of the register are available at its offices for
inspection at all reasonable times by any person.

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

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

(a) 40in such circumstances as may be prescribed, or

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

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

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

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

5Licence conditions

95 Standard conditions

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

(2) 10Different standard conditions may be determined for different descriptions of
licences.

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

(a) the nature of the licence holder,

(b) 15the services provided under the licence, or

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

(4) But different standard conditions must not be determined for different
descriptions of licences to the extent that the description is framed by reference
to the nature of the licence holder unless Monitor considers that at least one of
20requirements 1 and 2 is met.

(5) Requirement 1 is that—

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

(b) it is necessary to determine different standard conditions in order to
25take account of differences in the status of different licence holders.

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

(7) Before determining the first set of the standard conditions Monitor must
30consult the persons mentioned in subsection (8) on the conditions it is
proposing to determine (“the draft standard conditions”).

(8) Those persons are—

(a) the Secretary of State,

(b) the NHS Commissioning Board Authority,

(c) 35every Primary Care Trust,

(d) the Care Quality Commission, and

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

(9) 40Monitor must also publish the draft standard conditions.

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

(11) If, at the time Monitor discharges the function under subsection (7), the day
specified by the Secretary of State for the purposes of section 14A of the
National Health Service Act 2006 has passed or section 6 or 178 has come into
force—

(a) 5in the case of section 14A of the National Health Service Act 2006, the
reference in subsection (8)(c) to every Primary Care Trust is to be read
as a reference to every clinical commissioning group;

(b) in the case of section 6, the reference in subsection (8)(b) to the NHS
Commissioning Board Authority is to be read as a reference to the
10National Health Service Commissioning Board;

(c) in the case of section 178, the reference in subsection (8)(d) to the Care
Quality Commission is to be read as including a reference to its
Healthwatch England committee.

96 Special conditions

(1) 15Monitor may—

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

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

(2) 20Before including a special condition or making such modifications Monitor
must give notice to—

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

(b) the Secretary of State,

(c) the National Health Service Commissioning Board,

(d) 25such clinical commissioning groups as are likely to be affected by the
proposed inclusion or modifications, and

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

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

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

(a) 30state that Monitor proposes to include the special condition or make the
modifications and set out its or their proposed effect,

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

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

(5) 35The notice period must be not less than 28 days beginning with the day after
that on which the notice is published under subsection (3).

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

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

(1) 40This section applies to the following functions of Monitor—

(a) the duty to determine the standard conditions to be included in each
licence under this Chapter or in licences of a particular description (see
section 95);

(b) the powers to include a special condition in a licence and to modify
45such a condition (see section 96);

(c) the power to modify the standard conditions applicable to all licences,
or to licences of a particular description (see section 100).

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

(a) for the purpose of regulating the price payable for the provision of
5health care services for the purposes of the NHS;

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

(c) for the purpose of protecting and promoting the right of patients to
10make choices with respect to treatment or other health care services
provided for the purposes of the NHS;

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

(e) for purposes connected with the governance of persons providing
15health care services for the purposes of the NHS;

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

(g) for purposes connected with the operation of the licensing regime
20established by this Chapter;

(h) for such purposes as may be prescribed for the purpose of enabling
Monitor to discharge its duties under section 61.

(3) Monitor must not exercise a function to which this section applies in a way
which it considers would result in a particular licence holder or holders of
25licences of a particular description being put at an unfair advantage or
disadvantage in competing with others in the provision of health care services
for the purposes of the NHS as a result of—

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

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

98 30Conditions: supplementary

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

(a) requiring the licence holder to pay to Monitor such fees of such
amounts as Monitor may determine in respect of the exercise by
35Monitor of its functions under this Chapter,

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

(c) requiring the licence holder to do, or not to do, specified things or
40things of a specified description (or to do, or not to do, any such things
in a specified manner) within such period as may be specified in order
to prevent anti-competitive behaviour in the provision of health care
services for the purposes of the NHS which is against the interests of
people who use such services,

(d) 45requiring the licence holder to give notice to the Office of Fair Trading
before entering into an arrangement under which, or a transaction in
consequence of which, the licence holder’s activities, and the activities
of one or more other businesses, cease to be distinct activities,