Health and Social Care Bill

Session 2010 - 12
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
111

(g)
requiring the licence holder to charge for the provision of health care
services for the purposes of the NHS in accordance with the national
tariff (see section 116),
(h)
requiring the licence holder to comply with other rules published by
Monitor about the charging for the provision of health care services for
5
the purposes of the NHS,
(i)
requiring the licence holder—
(i)
to do, or not to do, specified things or things 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
10
ensure the continued provision of one or more of the health care
services that the licence holder provides for the purposes of the
NHS,
(ii)
to give Monitor notice (of such period as may be determined by
or under the licence) of the licence holder’s intention to cease
15
providing a health care service for the purposes of the NHS, and
(iii)
if Monitor so directs, to continue providing that service for a
period determined by Monitor,
(j)
about the use or disposal by the licence holder of assets used in the
provision of health care services for the purposes of the NHS in order
20
to ensure the continued provision of one or more of the health care
services that the licence holder provides for those purposes, and
(k)
about the making by the licence holder of investment in relation to the
provision of health care services for the purposes of the NHS in order
to ensure the continued provision of one or more of the health care
25
services that the licence holder provides for those purposes.
(2)
In subsection (1) “specified” means specified in a condition.
(3)
Monitor must not include a condition under subsection (1)(c) that requires the
licence holder (A) to provide another licence holder with access to facilities of
A.
30
(4)
A condition under subsection (1)(d)—
(a)
may be included only in the licence of an NHS foundation trust or a
body which (or part of which) used to be an NHS trust established
under section 25 of the National Health Service Act 2006, and
(b)
ceases to have effect at the end of the period of five years beginning
35
with the day on which it is included in the licence.
(5)
The references in subsection (1)(d) to the activities of a licence holder or other
business include a reference to part of the activities concerned.
(6)
The references in subsections (1)(d) and (5) to the activities of a business
include a reference to the activities of an NHS foundation trust in so far as its
40
activities would not otherwise be the activities of a business.
(7)
A condition of a licence under this Chapter may provide that it is to have effect,
or cease to have effect, at such times and in such circumstances as may be
determined by or under the conditions.
98
Conditions relating to the continuation of the provision of services etc.
45
(1)
The things which a licence holder may be required to do by a condition under
section 97(1)(i)(i) include, in particular—

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
112

(a)
providing information to the commissioners of services to which the
condition applies and to such other persons as Monitor may direct,
(b)
allowing Monitor to enter premises owned or controlled by the licence
holder and to inspect the premises and anything on them, and
(c)
co-operating with such persons as Monitor may appoint to assist in the
5
management of the licence holder’s affairs, business and property.
(2)
A commissioner of services to which a condition under section 97(1)(i), (j) or (k)
applies must co-operate with persons appointed under subsection (1)(c) in
their provision of the assistance that they have been appointed to provide.
(3)
Where a licence includes a condition under section 97(1)(i), (j) or (k), Monitor
10
must carry out an ongoing assessment of the risks to the continued provision
of services to which the condition applies.
(4)
Monitor must publish guidance—
(a)
for commissioners of a service to which a condition under section
97(1)(i), (j) or (k) applies about the exercise of their functions in
15
connection with the licence holders who provide the service, and
(b)
for such licence holders about the conduct of their affairs, business and
property at a time at which such a condition applies.
(5)
A commissioner of services to which a condition under section 97(1)(i), (j), or
(k) applies must have regard to guidance under subsection (4)(a).
20
(6)
Monitor may revise guidance under subsection (4) and, if it does so, must
publish the guidance as revised.
(7)
Before publishing guidance under subsection (4) or (6), Monitor must obtain
the approval of—
(a)
the Secretary of State, and
25
(b)
the National Health Service Commissioning Board.
99
Notification of commissioners where continuation of services at risk
(1)
This section applies where Monitor—
(a)
takes action in the case of a licence holder in reliance on a condition in
the licence under section 97(1)(i), (j) or (k), and
30
(b)
does so because it is satisfied that the continued provision for the
purposes of the NHS of health care services to which that condition
applies is being put at significant risk by the configuration of certain
health care services provided for those purposes.
(2)
In subsection (1), a reference to the provision of services is a reference to their
35
provision by the licence holder or any other provider.
(3)
Monitor must as soon as reasonably practicable notify the National Health
Service Commissioning Board and such clinical commissioning groups as
Monitor considers appropriate—
(a)
of the action it has taken, and
40
(b)
of its reasons for being satisfied as mentioned in subsection (1)(b).
(4)
Monitor must publish for each financial year a list of the notifications under
this section that it has given during that year; and the list must include for each
notification a summary of Monitor’s reasons for being satisfied as mentioned
in subsection (1)(b).
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Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
113

(5)
The Board and clinical commissioning groups, having received a notification
under this section, must have regard to it in arranging for the provision of
health care services for the purposes of the NHS.
100
Modification of standard conditions
(1)
Monitor may, subject to the requirements of this section, modify the standard
5
conditions applicable to all licences under this Chapter or to licences of a
particular description.
(2)
Before making any such modifications Monitor must give notice to—
(a)
each relevant licence holder,
(b)
the Secretary of State,
10
(c)
the National Health Service Commissioning Board,
(d)
every clinical commissioning group, 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—
15
(a)
state that Monitor proposes to make the modifications,
(b)
set out the proposed effect of the modifications,
(c)
set out Monitor’s reasons for the proposal, and
(d)
specify the period (“the notice period”) within which representations
with respect to the proposal may be made to Monitor.
20
(5)
The 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)
Monitor may not make any modifications under this section unless—
(a)
no relevant licence holder has made an objection to Monitor about the
proposal within the notice period, or
25
(b)
subsection (7) applies to the case.
(7)
This subsection applies where—
(a)
one or more relevant licence holders make an objection to Monitor
about the proposal within the notice period,
(b)
the objection percentage is less than the percentage prescribed for the
30
purposes of this paragraph, and
(c)
the share of supply percentage is less than the percentage prescribed for
the purposes of this paragraph.
(8)
In subsection (7)—
(a)
the “objection percentage” is the proportion (expressed as a percentage)
35
of the relevant licence holders who objected to the proposals;
(b)
the “share of supply percentage” is the proportion (expressed as a
percentage) of the relevant licence holders who objected to the
proposals, weighted according to their share of the supply in England
of such services as may be prescribed.
40
(9)
Regulations prescribing a percentage for the purposes of subsection (7)(c) may
include provision prescribing the method to be used for determining a licence
holder’s share of the supply in England of the services concerned.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
114

(10)
Where Monitor modifies the standard conditions applicable to all licences or
(as the case may be) to licences of a particular description under this section,
Monitor—
(a)
may also make such incidental or consequential modifications as it
considers necessary or expedient of any other conditions of a licence
5
which is affected by the modifications,
(b)
must make (as nearly as may be) the same modifications of those
conditions for the purposes of their inclusion in all licences or (as the
case may be) licences of that description granted after that time, and
(c)
must publish the modifications.
10
(11)
In this section and section 101, “relevant licence holder”—
(a)
in relation to proposed modifications of the standard conditions
applicable to all licences, means any licence holder, and
(b)
in relation to proposed modifications of the standard conditions
applicable to licences of a particular description, means a holder of a
15
licence of that description.
(12)
In this section, a reference to modifying a condition includes a reference to
amending, omitting or adding a condition.
101
Modification references to the Competition Commission
(1)
Subsection (2) applies where—
20
(a)
Monitor has given notice under section 95(2) of a proposal to include a
special condition in a licence or modify such a condition, and
(b)
the applicant or (as the case may be) licence holder concerned has
refused consent to the inclusion of the condition or the making of the
modifications.
25
(2)
Monitor may make a reference to the Competition Commission which is so
framed as to require the Commission to investigate and report on the
questions—
(a)
whether any matters which relate to the provision, or proposed
provision, of a health care service for the purposes of the NHS by the
30
applicant or (as the case may be) licence holder concerned and which
are specified in the reference, operate, or may be expected to operate,
against the public interest, and
(b)
if so, whether the effects adverse to the public interest which those
matters have or may be expected to have could be remedied or
35
prevented by the inclusion of a special condition in the applicant’s
licence or by modifications of a special condition of the licence holder’s
licence.
(3)
Subsection (4) applies where—
(a)
Monitor has given notice under section 100(2) of a proposal to make
40
modifications to the standard conditions applicable to all licences
under this Chapter, or to licences of a particular description, and
(b)
section 100 operates to prevent Monitor from making the
modifications.
(4)
Monitor may make a reference to the Competition Commission which is so
45
framed as to require the Commission to investigate and report on the
questions—

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
115

(a)
whether any matters which relate to the provision of health care
services for the purposes of the NHS by the relevant licence holders,
and which are specified in the reference, operate, or may be expected to
operate, against the public interest, and
(b)
if so, whether the effects adverse to the public interest which those
5
matters have or may be expected to have could be remedied or
prevented by modifications of the standard conditions applicable to all
licences under this Chapter, or to licences of a particular description.
(5)
Schedule 10 (which makes further provision about references to the
Competition Commission) has effect in relation to a reference under subsection
10
(2) or (4); and, for that purpose, the relevant persons are—
(a)
in paragraphs 3, 6(6) and 7(6)—
(i)
the applicant or licence holder concerned or (as the case may be)
relevant licence holders,
(ii)
the National Health Service Commissioning Board, and
15
(iii)
such clinical commissioning groups as are likely to be affected
by matters to which the reference relates,
(b)
in paragraph 5(6), the applicant or licence holder concerned or (as the
case may be) relevant licence holders, and
(c)
in paragraph 8(10)—
20
(i)
the applicant or licence holder concerned or (as the case may be)
relevant licence holders,
(ii)
Monitor,
(iii)
the National Health Service Commissioning Board, and
(iv)
such clinical commissioning groups as are likely to be affected
25
by the proposal concerned.
(6)
In investigating the question under subsection (2)(a) or (4)(a) the Competition
Commission must have regard to—
(a)
the matters in respect of which Monitor has duties under section 62,
and
30
(b)
the matters to which Monitor must have regard by virtue of section 66.
(7)
Where the standard conditions applicable to all licences or (as the case may be)
to licences of a particular description are modified pursuant to a reference
made under subsection (4), Monitor—
(a)
may also make such incidental or consequential modifications as it
35
considers necessary or expedient of any other conditions of a licence
which is affected by the modifications,
(b)
must make (as nearly as may be) the same modifications of those
conditions for the purposes of their inclusion in all licences or (as the
case may be) licences of that description granted after that time, and
40
(c)
must publish any modifications made under this subsection.
(8)
In this section, a reference to modifying a condition includes a reference to
amending, omitting or adding a condition.
102
Modification of conditions by order under other enactments
(1)
This section applies where the Office of Fair Trading, Competition
45
Commission or Secretary of State (the “relevant authority”) makes a relevant
order.

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Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
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(2)
A relevant order may modify—
(a)
the conditions of a particular licence, or
(b)
the standard conditions applicable to all licences under this Chapter or
to licences of a particular description.
(3)
The modifications which may be made by a relevant order are those which the
5
relevant authority considers necessary or expedient for the purpose of giving
effect to, or taking account of, any provision made by the order.
(4)
In this section “relevant order” means—
(a)
an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of
Schedule 7 to, the Enterprise Act 2002 where one or more of the
10
enterprises which have, or may have, ceased to be distinct enterprises
were engaged in the provision of health care services for the purposes
of the NHS;
(b)
an order under any of those provisions of that Act where one or more
of the enterprises which will or may cease to be distinct enterprises is
15
engaged in the provision of health care services for the purposes of the
NHS;
(c)
an order under section 160 or 161 of that Act where the feature, or
combination of features, of the market in the United Kingdom for
goods or services which prevents, restricts or distorts competition
20
relates to—
(i)
the commissioning by the National Health Service
Commissioning Board or a clinical commissioning group of
health care services for the purposes of the NHS, or
(ii)
the provision of those services.
25
(5)
The modification under subsection (2)(a) of part of a standard condition of a
licence does not prevent any other part of the condition from continuing to be
regarded as a standard condition for the purposes of this Chapter.
(6)
Where the relevant authority modifies the standard conditions applicable to all
licences or (as the case may be) to licences of a particular description under this
30
section, the relevant authority—
(a)
may, after consultation with Monitor, make such incidental or
consequential modifications as the relevant authority considers
necessary or expedient of any other conditions of any licence which is
affected by the modifications,
35
(b)
must also make (as nearly as may be) the same modifications of those
conditions for the purposes of their inclusion in all licences or (as the
case may be) licences of that description granted after that time, and
(c)
must publish any modifications it makes under paragraph (b).
(7)
Expressions used in subsection (4) and in Part 3 or (as the case may be) Part 4
40
of the Enterprise Act 2002 have the same meaning in that subsection as in that
Part.
(8)
In this section, a reference to modifying a condition includes a reference to
amending, omitting or adding a condition.
103
Standard condition as to transparency of certain criteria
45
(1)
The standard conditions applicable to any licence under this Chapter must
include a condition requiring the licence holder to—

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Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
117

(a)
set transparent eligibility and selection criteria, and
(b)
apply those criteria in a transparent way to persons who, having a
choice of persons from whom to receive health care services for the
purposes of the NHS, choose to receive them from the licence holder.
(2)
“Eligibility and selection criteria”, in relation to a licence holder, means criteria
5
for determining—
(a)
whether a person is eligible, or is to be selected, to receive health care
services provided by the licence holder for the purposes of the NHS,
and
(b)
if the person is selected, the manner in which the services are provided
10
to the person.
(3)
The following powers must not be exercised so as to omit the condition
mentioned in subsection (1) from any licence under this Chapter—
(a)
the powers conferred on Monitor by sections 100, 101(7) and paragraph
7(2) of Schedule 10 to modify the standard conditions applicable to all
15
licences, or to licences of a particular description,
(b)
the power conferred on the Competition Commission by paragraph
8(5) of that Schedule to modify those conditions, and
(c)
the powers conferred by section 102 on the Office of Fair Trading,
Competition Commission and Secretary of State to modify those
20
conditions or the conditions of a particular licence.
Enforcement
104
Power to require documents and information
(1)
Monitor may require a person mentioned in subsection (2) to provide it with
any information, documents, records or other items which it considers it
25
necessary or expedient to have for the purposes of any of its regulatory
functions.
(2)
The persons are—
(a)
an applicant for a licence under this Chapter,
(b)
a licence holder,
30
(c)
a person who has provided, or is providing, a health care service for the
purposes of the NHS in accordance with an exemption by virtue of
section 83 from the requirement to hold a licence under this Chapter,
(d)
a person who has provided, or is providing, a health care service for the
purposes of the NHS in breach of that requirement,
35
(e)
the National Health Service Commissioning Board, and
(f)
a clinical commissioning group.
(3)
The power in subsection (1) includes, in relation to information, documents or
records kept by means of a computer, power to require the provision of the
information, documents or records in legible form.
40
(4)
For the purposes of subsection (1) Monitor’s regulatory functions are its
functions under—
(a)
this Chapter,
(b)
Chapters 4 to 6,
(c)
Chapter 5 of Part 2 of the National Health Service Act 2006 (NHS
45
foundation trusts), and