Health and Social Care Bill (HL Bill 119)

(b) make arrangements with Monitor to ensure that—

(i) a person applying to be both registered under Chapter 2
and for a licence under the Health and Social Care Act
2012 may do so by way of a single application form, and

(ii) 5such a person is granted a registration under Chapter 2
and a licence under that Act by way of a single
document, and

(c) seek to secure that the conditions on a registration under
Chapter 2 in a case within paragraph (b) are consistent with the
10conditions included in the person’s licence under that Act.”

(4) In subsection (3)—

(a) for “Independent Regulator” substitute “Monitor”, and

(b) for “an NHS foundation trust” substitute “a person who holds a licence
under the Health and Social Care Act 2012”.

(5) 15After that subsection insert—

“(4) In this section, a reference to a licence under the Health and Social Care
Act 2012 is a reference to a licence under Chapter 3 of Part 3 of that Act.”

(6) In the heading of that section, for “Independent Regulator of NHS Foundation
Trusts” substitute “Monitor”.

286 20Other duties to co-operate

(1) Monitor and each relevant body must co-operate with each other in the
exercise of their respective functions.

(2) The Care Quality Commission and each relevant body must co-operate with
each other in the exercise of their respective functions.

(3) 25The relevant bodies are—

(a) the National Health Service Commissioning Board,

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

(c) the Health and Social Care Information Centre, and

(d) Special Health Authorities which have functions that are exercisable in
30relation to England.

(4) The Secretary of State may by order amend subsection (3) so as to add to the
list of relevant bodies a body that has functions relating to health.

(5) Where Monitor or the Care Quality Commission regulates an activity of a
relevant body, the duty imposed by subsection (1) or (as the case may be)
35subsection (2) does not apply to—

(a) the exercise by Monitor or by the Commission of its function of
regulating that activity;

(b) the exercise by the relevant body of any function in so far as it involves
carrying on that activity.

(6) 40A reference in this section to regulating an activity includes a reference to—

(a) authorising the carrying on of the activity, imposing restrictions on the
carrying on of the activity, and exercising functions in relation to such
authorisations or restrictions;

(b) enforcing the performance of an obligation imposed (whether or not by
provision made by or under an enactment) with respect to the carrying
on of the activity;

(c) issuing guidance on the carrying on of the activity, the authorisation of
5the activity, restrictions on the activity, or the performance of obligation
imposed with respect to the carrying on of the activity.

(7) For the purposes of this section and section 287, the functions of a Special
Health Authority include such functions as it is directed to exercise under
section 7 of the National Health Service Act 2006 (directions by Secretary of
10State).

(8) References in this section and section 287 to functions are references to
functions so far as exercisable in relation to England.

287 Breaches of duties to co-operate

(1) If the Secretary of State is of the opinion that bodies subject to a relevant co-
15operation duty have breached or are breaching the duty, or are at significant
risk of breaching the duty, the Secretary of State may give a written notice of
the Secretary of State’s opinion to each body.

(2) The relevant co-operation duties are—

(a) the duty under section 284 (co-operation by Monitor with the Care
20Quality Commission),

(b) the duties under section 286(1) and (2),

(c) the duty under section 70 of the Health and Social Care Act 2008 (co-
operation by the Care Quality Commission with Monitor),

(d) any duties imposed by an enactment on relevant bodies to co-operate
25with each other in the exercise of their respective functions.

(3) The Secretary of State must publish each notice given under subsection (1) in
such form as the Secretary of State considers appropriate.

(4) Subsection (5) applies if, having given a notice under subsection (1), the
Secretary of State is satisfied that—

(a) 30the bodies concerned have breached or are continuing to breach the
duty or, the risk of a breach having materialised, are breaching the
duty, and

(b) the breach is having a detrimental effect on the performance of the
health service (or, where the effect of the breach on the performance of
35the health service is both beneficial and detrimental, its overall effect is
detrimental).

(5) The Secretary of State may by order prohibit each body from exercising
specified functions, or from exercising specified functions in a specified
manner, unless the other body concerned agrees in writing that the body may
40do so.

(6) The power to make an order under subsection (5)—

(a) may be exercised so as to specify different functions in relation to each
body, but

(b) may not be exercised so as to prevent a body from complying with a
45requirement imposed by or under an enactment or by a court or
tribunal.

(7) In default of agreement as to the exercise of a function specified in an order
under subsection (5), a body may exercise the function in accordance with
provision determined by arbitration.

(8) An order under subsection (5) must specify the period for which a prohibition
5imposed by it has effect; and the period specified for that purpose may not
exceed one year beginning with the day on which the order comes into force.

(9) But if the Secretary of State is satisfied that the breach is continuing to have a
detrimental effect (or an effect that overall is detrimental) on the performance
of the health service, the Secretary of State may by order extend by one year the
10period for which the prohibition for the time being has effect.

(10) In this section, “the health service” means the comprehensive health service
continued under section 1(1) of the National Health Service Act 2006.

The Care Quality Commission

288 Requirement for Secretary of State to approve remuneration policy etc.

15In paragraph 5 of Schedule 1 to the Health and Social Care Act 2008 (employees
of the Care Quality Commission), at the end insert—

“(5) Before making a determination as to remuneration, pensions,
allowances or gratuities for the purposes of sub-paragraph (3) or (4),
the Commission must obtain the approval of the Secretary of State to
20its policy on that matter.”

289 Conduct of reviews etc. by Care Quality Commission

(1) Part 1 of the Health and Social Care Act 2008 (the Care Quality Commission) is
amended as follows.

(2) In section 48 (special reviews and investigations)—

(a) 25in subsection (1) after “may” insert “, with the approval of the Secretary
of State,”, and

(b) after subsection (1) insert—

“(1A) The Commission may conduct an investigation under this
section without the approval of the Secretary of State where the
30Commission considers there to be a risk to the health, safety or
welfare of persons receiving health or social care.”

(3) In section 54 (studies as to economy, efficiency etc.), in each of subsections (1)
and (3) after “may” insert “, with the approval of the Secretary of State,”.

(4) In section 57 (reviews of data, studies and research), in subsection (1) after
35“may” insert “, with the approval of the Secretary of State,”.

290 Failure to discharge functions

(1) In section 82 of the Health and Social Care Act 2008 (failure by Commission to
discharge functions), in subsection (1), at the end insert “,

and that the failure is significant.”

(2) After subsection (2) of that section insert—

“(2A) But the Secretary of State may not give a direction under subsection (1)
in relation to the performance of functions in a particular case.”

(3) After subsection (3) of that section insert—

“(4) 5Where the Secretary of State exercises a power under subsection (1) or
(3), the Secretary of State must publish the reasons for doing so.”

(4) In section 161 of that Act (orders, regulations and directions: general
provisions), in subsection (3), before “any power of the Secretary of State to
give directions” insert “(subject to section 82(2A))”.

(5) 10In section 165 of that Act (directions), at the beginning of subsection (2) insert
“Subject to subsection (3),”.

(6) After that subsection insert—

“(3) A direction under section 82 must be given by regulations or by an
instrument in writing.”

15Arrangements with devolved authorities etc.

291 Arrangements between the Board and Northern Ireland Ministers

(1) The National Health Service Commissioning Board may make arrangements
with a Northern Ireland Minister for the Board to commission services for the
purposes of the Northern Ireland health service.

(2) 20Arrangements under this section may be on such terms and conditions as may
be agreed between the parties to the arrangements.

(3) Those terms and conditions may include provision with respect to the making
of payments to the National Health Service Commissioning Board in respect of
the cost to it of giving effect to the arrangements.

(4) 25In this section—

• “commission” means arrange for the provision of,

• “Northern Ireland health service” means any of the health services under
  any enactment which extends to Northern Ireland and which
  corresponds to section 1(1) of the National Health Service Act 2006
  30(and, for that purpose, “enactment” includes subordinate legislation
  (within the meaning of the Interpretation Act 1978) and Northern
  Ireland legislation), and

• “Northern Ireland Minister” includes the First Minister, the deputy First
  Minister and a Northern Ireland department.

292 35Arrangements between the Board and Scottish Ministers etc.

(1) The National Health Service Commissioning Board may make arrangements
with the Scottish Ministers or a Scottish health body for the Board to
commission services for the purposes of the Scottish health service.

(2) Arrangements under this section may be on such terms and conditions as may
40be agreed between the parties to the arrangements.

(3) Those terms and conditions may include provision with respect to the making
of payments to the National Health Service Commissioning Board in respect of
the cost to it of giving effect to the arrangements.

(4) In this section—

• 5“commission” means arrange for the provision of, and

• “Scottish health body” means—

  (a)

  a Health Board or Special Health Board constituted under
  section 2 of the National Health Service (Scotland) Act 1978, and

  (b)

  the Common Services Agency for the Scottish Health Service
  10constituted by section 10 of that Act.

293 Relationships between the health services

Schedule 22 (which amends enactments relating to the relationships between
the health services in the United Kingdom) has effect.

294 Advice or assistance to public authorities in the Isle of Man or Channel
15Islands

(1) The National Health Service Commissioning Board or a clinical commissioning
group may provide advice or assistance to any public authority in the Isle of
Man or Channel Islands.

(2) Advice or assistance under subsection (1) may be provided on such terms,
20including terms as to payment, as the Board or (as the case may be) the clinical
commissioning group considers appropriate.

Supervised community treatment

295 Certificate of consent of community patients to treatment

(1) Part 4A of the Mental Health Act 1983 (treatment of community patients not
25recalled to hospital) is amended as follows.

(2) In section 64C (treatment of adult community patients), after subsection (4)
insert—

“(4A) Where there is authority to give treatment by virtue of subsection (2)(a),
the certificate requirement is also met in respect of the treatment if the
30approved clinician in charge of the treatment has certified in writing
that the patient has capacity to consent to the treatment and has
consented to it.

(4B) But, if the patient has not attained the age of 18, subsection (4A) does
not apply to section 58A type treatment.”

(3) 35In section 64E (treatment of child community patients), in subsection (7)—

(a) for “(3) to (9)” substitute “(3) to (4A) and (5) to (9)”, and

(b) at the end insert “; and for the purpose of this subsection, subsection
(4A) of section 64C above has effect as if—

“(a) the references to treatment were references only to
40section 58 type treatment,

(b) the reference to subsection (2)(a) of section 64C were a
reference to subsection (6)(a) of this section, and

(c) the reference to capacity to consent were a reference to
competence to consent.”

(4) After section 64F insert—

“64FA Withdrawal of consent

(1) 5Where the consent of a patient to any treatment has been given as
mentioned in section 64C(2)(a) above for the purposes of section 64B or
64E above, the patient may at any time before the completion of the
treatment withdraw his consent, and those sections shall then apply as
if the remainder of the treatment were a separate form of treatment.

(2) 10Subsection (3) below applies where—

(a) the consent of a patient to any treatment has been given as
mentioned in section 64C(2)(a) above for the purposes of section
64B or 64E above; but

(b) before the completion of the treatment, the patient loses
15capacity or (as the case may be) competence to consent to the
treatment.

(3) The patient shall be treated as having withdrawn his consent and
section 64B or (as the case may be) section 64E above shall then apply
as if the remainder of the treatment were a separate form of treatment.

(4) 20Without prejudice to the application of subsections (1) to (3) above to
any treatment given under the plan of treatment to which a patient has
consented, a patient who has consented to such a plan may at any time
withdraw his consent to further treatment, or to further treatment of
any description, under the plan.

(5) 25This section shall not preclude the continuation of any treatment, or of
treatment under any plan, pending compliance with section 58, 58A,
64B or 64E above if the approved clinician in charge of the treatment
considers that the discontinuance of the treatment, or of treatment
under the plan, would cause serious suffering to the patient.”

(5) 30In section 64H (certificates: supplementary provision)—

(a) in subsection (2), at the end insert “; and the regulations may make
different provision for the different descriptions of Part 4A certificate”,
and

(b) in subsections (3), (4) and (5), after “Part 4A certificate” insert “that falls
35within section 64C(4) above”.

(6) In section 17B of the Mental Health Act 1983 (conditions of community
treatment order), in subsection (3)(b), after “Part 4A of this Act” insert “that
falls within section 64C(4) below”.

(7) In section 61 of that Act (review of treatment), in subsection (1), after “that
40section)” insert “that falls within section 64C(4) below”.

(8) In section 62A of that Act (treatment on recall of community patient or
revocation of order), in subsection (5), after “applies” insert “and the Part 4A
certificate falls within section 64C(4) below”.

(9) In subsection (6) of that section, after “58 or 58A above” insert “or 64B or 64E
45below”.

(10) After that subsection insert—

“(6A) In a case where this section applies and the certificate requirement is no
longer met for the purposes of section 64C(4A) below, the continuation
of any treatment, or of treatment under any plan, pending compliance
5with section 58 or 58A above or 64B or 64E below shall not be precluded
if the approved clinician in charge of the treatment considers that the
discontinuance of the treatment, or of treatment under the plan, would
cause serious suffering to the patient.”

Transfer schemes

296 10Transfer schemes

(1) The Secretary of State may make a property transfer scheme or a staff transfer
scheme in connection with—

(a) the establishment or abolition of a body by this Act, or

(b) the modification of the functions of a body or other person by or under
15this Act.

(2) A property transfer scheme is a scheme for the transfer from a body or other
person mentioned in the first column of the Table in Schedule 23 of any
property, rights or liabilities, other than rights or liabilities under or in
connection with a contract of employment, to a body or other person
20mentioned in the corresponding entry in the second column.

(3) A staff transfer scheme is a scheme for the transfer from a body or other person
mentioned in the first column of the Table in Schedule 24 of any rights or
liabilities under or in connection with a contract of employment to a body or
other person mentioned in the corresponding entry in the second column.

(4) 25The Secretary of State may direct the Board or a qualifying company to exercise
the functions of the Secretary of State in relation to the making of a property
transfer scheme or a staff transfer scheme in connection with the abolition of—

(a) one or more Primary Care Trusts specified in the direction, or

(b) one or more Strategic Health Authorities so specified.

(5) 30Where the Secretary of State gives a direction under subsection (4), the
Secretary of State may give directions to the Board or (as the case may be) the
company about its exercise of the functions.

(6) For the purposes of this section and section 297—

(a) an individual who holds employment in the civil service is to be treated
35as employed by virtue of a contract of employment, and

(b) the terms of the individual’s employment in the civil service are to be
regarded as constituting the terms of the contract of employment.

(7) In this section and sections 297 and 298 references to the transfer of property
include references to the grant of a lease.

(8) 40In this section and Schedules 23 and 24, “qualifying company” means—

(a) a company which is formed under section 223 of the National Health
Service Act 2006 and wholly or partly owned by the Secretary of State
or the Board, or

(b) a subsidiary of a company which is formed under that section and
45wholly owned by the Secretary of State.

(9) In section 297 and Schedules 23 and 24—

• “local authority” means—

  (a)

  a county council in England;

  (b)

  a district council in England, other than a council for a district
  5in a county for which there is a county council;

  (c)

  a London borough council;

  (d)

  the Council of the Isles of Scilly;

  (e)

  the Common Council of the City of London;

• “public authority” means any body or other person which has functions
  10conferred by or under an Act or by royal charter.

297 Transfer schemes: supplemental

(1) The things that may be transferred under a property transfer scheme or a staff
transfer scheme include—

(a) property, rights and liabilities that could not otherwise be transferred;

(b) 15property acquired, and rights and liabilities arising, after the making of
the scheme;

(c) criminal liabilities but only where the transfer is to a person mentioned
in subsection (2).

(2) Those persons are—

(a) 20the National Health Service Commissioning Board;

(b) a clinical commissioning group;

(c) a local authority;

(d) the Care Quality Commission;

(e) Monitor;

(f) 25the National Institute for Health and Care Excellence;

(g) the Health and Social Care Information Centre;

(h) the Health and Care Professions Council;

(i) a public authority other than a Minister of the Crown.

(3) A property transfer scheme or a staff transfer scheme may make
30supplementary, incidental, transitional and consequential provision and may
in particular—

(a) create rights, or impose liabilities, in relation to property or rights
transferred;

(b) make provision about the continuing effect of things done by the
35transferor in respect of anything transferred;

(c) make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in relation
to the transferor in respect of anything transferred;

(d) make provision for references to the transferor in an instrument or
40other document in respect of anything transferred to be treated as
references to the transferee.

(4) A property transfer scheme may make provision for the shared ownership or
use of property.

(5) A staff transfer scheme may make provision which is the same or similar to the
45TUPE regulations.

(6) A property transfer scheme or a staff transfer scheme may provide—

(a) for the scheme to be modified by agreement after it comes into effect,
and

(b) for any such modifications to have effect from the date when the
original scheme comes into effect.

(7) 5Where a Primary Care Trust, a Strategic Health Authority or a Special Health
Authority is abolished by this Act, the Secretary of State must exercise the
powers conferred by section 296 and this section so as to secure that all the
body’s liabilities (other than criminal liabilities) are dealt with.

(8) In this section, “TUPE regulations” means the Transfer of Undertakings
10(Protection of Employment) Regulations 2006 (SI 2006/246SI 2006/246).

298 Subsequent property transfer schemes

(1) This section applies in relation to any property, rights or liabilities which are
transferred under a property transfer scheme under section 296(1) from a
Primary Care Trust, a Strategic Health Authority or the Secretary of State to a
15Special Health Authority or a qualifying company.

(2) The Secretary of State may make a scheme for the transfer of any such property,
rights or liabilities from the Special Health Authority or the qualifying
company to any body or other person mentioned in the second column of
Schedule 23.

(3) 20Subsections (1) to (4) and (6) of section 297 apply in relation to a scheme under
subsection (2) as they apply in relation to a property transfer scheme under
section 296(1).

Part 12 Final provisions

299 25Power to make consequential provision

(1) The Secretary of State may by order make provision in consequence of this Act.

(2) An order under this section may, in particular—

(a) amend, repeal, revoke or otherwise modify any enactment;

(b) include transitional, transitory or saving provision in connection with
30the commencement of provision made by the order.

(3) Transitory provision by virtue of subsection (2)(b) may, in particular, modify
the application of provision made by the order pending the commencement
of—

(a) another provision of the order,

(b) 35a provision of this Act,

(c) any other enactment.

(4) Before making an order under this section that contains provision which
would, if included in an Act of the Scottish Parliament, fall within the
legislative competence of that Parliament, the Secretary of State must consult
40the Scottish Ministers.

(5) The power conferred by this section is not restricted by any other provision of
this Act.

(6) In this section, “enactment” includes—

(a) an enactment contained in subordinate legislation (within the meaning
of the Interpretation Act 1978), and

(b) an enactment contained in, or in an instrument made under, an Act of
5the Scottish Parliament, an Act or Measure of the National Assembly
for Wales or Northern Ireland legislation,

and references to an enactment include a reference to an enactment passed or
made after the passing of this Act.

300 Regulations, orders and directions

(1) 10A power to make regulations under this Act is exercisable by the Secretary of
State.

(2) Regulations under this Act, and orders by the Secretary of State, the Welsh
Ministers or the Privy Council under this Act, must be made by statutory
instrument.

(3) 15Subject to subsections (4) to (6), a statutory instrument containing regulations
under this Act, or an order by the Secretary of State or the Privy Council under
this Act, is subject to annulment in pursuance of a resolution of either House of
Parliament.

(4) Subsection (3) does not apply to an order under section 302 (commencement).

(5) 20A statutory instrument which contains (whether alone or with other provision)
any of the following may not be made unless a draft of the instrument has been
laid before, and approved by a resolution of, each House of Parliament—

(a) regulations under section 63 (extension of Monitor’s functions to adult
social care services);

(b) 25regulations under section 100(7)(b) or (c) (percentage to be prescribed
in cases of objections to proposals to modify standard licence
conditions);

(c) regulations under section 105(4) (manner in which turnover to be
calculated for purposes of penalty for breach of licence conditions etc.);

(d) 30regulations under section 106(3)(d) (descriptions of action for
specifying in enforcement undertaking for breach of licence conditions
etc.);

(e) an order under section 112 (extension of transitional period during
which licence conditions may be imposed on NHS foundation trusts);

(f) 35regulations under section 120(2)(a), (b) or (c) (percentage to be
prescribed in cases of objections to proposals for national tariff);

(g) regulations under section 129 (health special administration
regulations);

(h) an order under section 139 (maximum amount that may be raised from
40levy to raise funds for special administration cases);

(i) regulations under section 141(2)(b) (percentage to be prescribed in
cases of objections to proposals to impose levy);

(j) an order under section 286(4) (addition to list of bodies subject to duty
co-operate);

(k) 45an order under section 287(5) (order prohibiting bodies subject to duty
to co-operate from exercising specified functions etc.);

(l) an order under section 299 (consequential provision) which includes
provision that amends or repeals a provision of an Act of Parliament;