Health and Social Care Bill

Session 2010 - 12
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Health and Social Care Bill

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
118

(d)
Chapter 5A of that Part of that Act (trust special administration).
105
Discretionary requirements
(1)
Monitor may impose one or more discretionary requirements on a person if
Monitor is satisfied that the person—
(a)
has provided, or is providing, a health care service for the purposes of
5
the NHS in breach of the requirement to hold a licence under this
Chapter (see section 81),
(b)
is a licence holder who has provided, or is providing, a health care
service for the purposes of the NHS in breach of a condition of the
licence, or
10
(c)
is in breach of a requirement imposed by Monitor under section 104.
(2)
In this Chapter, “discretionary requirement” means—
(a)
a requirement to pay a monetary penalty to Monitor of such amount as
Monitor may determine (referred to in this Chapter as a “variable
monetary penalty”),
15
(b)
a requirement to take such steps within such period as Monitor may
specify, to secure that the breach in question does not continue or recur
(referred to in this Chapter as a “compliance requirement”), or
(c)
a requirement to take such steps within such period as Monitor may
specify, to secure that the position is, so far as possible, restored to what
20
it would have been if the breach in question was not occurring or had
not occurred (referred to in this Chapter as a “restoration
requirement”).
(3)
Monitor must not impose discretionary requirements on a person on more
than one occasion in relation to the same breach.
25
(4)
A variable monetary penalty must not exceed 10% of the turnover in England
of the person on whom it is imposed, such amount to be calculated in the
prescribed manner.
(5)
If the whole or any part of a variable monetary penalty is not paid by the time
it is required to be paid, the unpaid balance from time to time carries interest
30
at the rate for the time being specified in section 17 of the Judgments Act 1838;
but the total interest must not exceed the amount of the penalty.
106
Enforcement undertakings
(1)
Monitor may accept an enforcement undertaking from a person if Monitor has
reasonable grounds to suspect that the person—
35
(a)
has provided, or is providing, a health care service for the purposes of
the NHS in breach of the requirement to hold a licence under this
Chapter,
(b)
is a licence holder who has provided, or is providing, a health care
service for the purposes of the NHS in breach of a condition of the
40
licence, or
(c)
is in breach of a requirement imposed by Monitor under section 104.
(2)
In this Chapter, “enforcement undertaking” means an undertaking from a
person to take such action of a kind mentioned in subsection (3) as may be
specified in the undertaking within such period as may be so specified.
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Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
119

(3)
The specified action must be—
(a)
action to secure that the breach in question does not continue or recur,
(b)
action to secure that the position is, so far as possible, restored to what
it would have been if the breach in question was not occurring or had
not occurred,
5
(c)
action (including the payment of a sum of money) to benefit—
(i)
any other licence holder affected by the breach, or
(ii)
any commissioner of health care services for the purposes of the
NHS which is affected by the breach, or
(d)
action of such a description as may be prescribed.
10
(4)
Where Monitor accepts an enforcement undertaking then, unless the person
from whom the undertaking is accepted has failed to comply with the
undertaking or any part of it—
(a)
Monitor may not impose on that person any discretionary requirement
which it would otherwise have power to impose by virtue of section
15
105 in respect of the breach to which the undertaking relates, and
(b)
if the breach to which the undertaking relates falls within subsection
(1)(b), Monitor may not revoke that person’s licence under section
89(b).
(5)
Where a person from whom Monitor has accepted an enforcement
20
undertaking has failed to comply fully with the undertaking but has complied
with part of it, Monitor must take the partial compliance into account in
deciding whether—
(a)
to impose a discretionary requirement on the person in respect of the
breach to which the undertaking relates, or
25
(b)
if the breach to which the undertaking relates falls within subsection
(1)(b), to revoke the person’s licence under section 89(b).
107
Further provision about enforcement powers
Schedule 11 (Part 1 of which makes further provision about discretionary
requirements and Part 2 of which makes further provision about enforcement
30
undertakings) has effect.
108
Guidance as to use of enforcement powers
(1)
Monitor must publish guidance about how it intends to exercise its functions
under sections 105 and 106 and Schedule 11.
(2)
Monitor may revise the guidance and, if it does so, must publish the guidance
35
as revised.
(3)
Monitor must consult such persons as it considers appropriate before
publishing or revising the guidance.
(4)
Guidance relating to Monitor’s functions under section 105 must include
information about—
40
(a)
the circumstances in which Monitor is likely to impose a discretionary
requirement,
(b)
the circumstances in which Monitor may not impose a discretionary
requirement,

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
120

(c)
the matters likely to be taken into account by Monitor in determining
the amount of any variable monetary penalty to be imposed (including,
where relevant, any discounts for voluntary reporting of breaches in
respect of which a penalty may be imposed), and
(d)
rights to make representations and rights of appeal.
5
(5)
Monitor must have regard to the guidance or (as the case may be) revised
guidance in exercising its functions under sections 105 and 106 and Schedule
11.
109
Publication of enforcement action
(1)
Monitor must include information about the following in its annual report—
10
(a)
the cases in which a discretionary requirement has been imposed
during the financial year to which the report relates, and
(b)
the cases in which an enforcement undertaking has been accepted
during that financial year.
(2)
But Monitor must not include information which it is satisfied is—
15
(a)
commercial information the disclosure of which would, or might,
significantly harm the legitimate business interests of the person to
whom it relates;
(b)
information relating to the private affairs of an individual the
disclosure of which would, or might, significantly harm that person’s
20
interests.
(3)
The reference in subsection (1)(a) to cases in which a discretionary requirement
has been imposed does not include a reference to a case where a discretionary
requirement has been imposed but overturned on appeal.
110
Notification of enforcement action
25
(1)
As soon as reasonably practicable after imposing a discretionary requirement
or accepting an enforcement undertaking Monitor must notify the following of
that fact—
(a)
the National Health Service Commissioning Board,
(b)
such clinical commissioning groups as are likely to be affected by the
30
imposition of the requirement or the acceptance of the undertaking,
and
(c)
any person exercising regulatory functions in relation to the person on
whom the discretionary requirement was imposed or from whom the
enforcement undertaking was accepted.
35
(2)
In subsection (1) “regulatory functions” has the same meaning as in the
Legislative and Regulatory Reform Act 2006 (see section 32 of that Act).
Transitional provision
111
Imposition of licence conditions on NHS foundation trusts
(1)
Where Monitor is satisfied that the governance of an NHS foundation trust is
40
such that the trust will fail to comply with the conditions of its licence, Monitor
may include in the licence such conditions relating to governance as it
considers appropriate for the purpose of reducing that risk.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
121

(2)
The circumstances in which Monitor may be satisfied as mentioned in
subsection (1) include circumstances where it is satisfied that the council of
governors, the board of directors or the council of governors and board of
directors taken together are failing—
(a)
to secure compliance with conditions in the trust’s licence, or
5
(b)
to take steps to reduce the risk of a breach of a condition in the trust’s
licence.
(3)
A condition included under subsection (1) has effect until this section ceases,
by virtue of section 112, to have effect in relation to the trust.
(4)
Monitor may modify a condition included under subsection (1).
10
(5)
Where Monitor is satisfied that the trust has breached or is breaching a
condition included under subsection (1), Monitor may by notice require the
trust to—
(a)
remove one or more of the directors or members of the council of
governors and appoint interim directors or members of the council;
15
(b)
suspend one or more of the directors or members of the council from
office as a director or member for a specified period;
(c)
disqualify one or more of the directors or members of the council from
holding office as a director or member for a specified period.
(6)
Where Monitor is satisfied that a person has failed or is failing to comply with
20
a notice under subsection (5), Monitor may do one or more of the things which
it may require the trust to do under that subsection.
(7)
Subsection (5) does not prevent Monitor from exercising in relation to a
condition included in a licence under subsection (1) the powers conferred by
sections 105 and 106 (breach of licence condition etc: enforcement powers
25
which apply during and after period in which this section and sections 112 to
114 have effect).
(8)
Where Monitor includes a condition under subsection (1), it may also make
such incidental or consequential modifications as it considers necessary or
expedient of any other condition of the licence concerned which is affected.
30
(9)
Where Monitor includes a condition under subsection (1) by modifying a
standard condition of the licence concerned, the modification does not prevent
any other part of the condition from continuing to be regarded as a standard
condition for the purposes of this Chapter.
(10)
In this section, a reference to failing to discharge functions includes a reference
35
to failing to discharge those functions properly.
(11)
Omit section 52 of the National Health Service Act 2006 (failing NHS
foundation trusts); and in consequence of that, omit—
(a)
section 39(2)(f) of that Act (copy of notice under section 52 of that Act
to be on register), and
40
(b)
paragraph 22(1)(f) of Schedule 7 to that Act (copy of that notice to be
available for public inspection).
112
Duration of transitional period
(1)
Section 111 ceases to have effect in relation to an NHS foundation trust on such
day as the Secretary of State may by order specify.
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Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
122

(2)
Different days may be appointed in relation to different NHS foundation
trusts.
(3)
A day specified under subsection (1) must not—
(a)
in the case of an NHS foundation trust authorised on or before 1 April
2014, be before 1 April 2016;
5
(b)
in the case of an NHS foundation trust authorised after 1 April 2014, be
before the end of the period of two years beginning with the day on
which the trust was authorised.
(4)
In this section, a reference to being authorised is a reference to being given an
authorisation under section 35 of the National Health Service Act 2006.
10
(5)
Section 111 is repealed as soon as there are—
(a)
no NHS foundation trusts in relation to which it has effect, and
(b)
no NHS trusts in existence (whether because they had all ceased to exist
without section 179 having come into force or there are none continuing
in existence by virtue of subsection (3) of that section).
15
113
Orders under section 112: criteria for deciding applicable trusts
(1)
Where the Secretary of State proposes to make an order under section 112, the
Secretary of State must notify Monitor.
(2)
Monitor, having received a notification under subsection (1), must set the
criteria that are to be applied for the purpose of determining to which NHS
20
foundation trusts the order should apply.
(3)
Before setting criteria under subsection (2), Monitor must—
(a)
consult the Care Quality Commission and such other persons as
Monitor considers appropriate, and
(b)
obtain the approval of the Secretary of State.
25
(4)
If the Secretary of State approves the proposed criteria, Monitor must—
(a)
publish the criteria,
(b)
determine, by applying the criteria, to which trusts the order should
apply,
(c)
notify the Secretary of State of its determination, and
30
(d)
publish a list of the trusts concerned.
(5)
If the Secretary of State does not approve the proposed criteria, Monitor must
propose revised criteria; and subsections (3)(b) and (4) apply in relation to the
proposed revised criteria as they apply in relation to the criteria previously
proposed.
35
(6)
The Secretary of State, having received a notification under subsection (4)(c),
must review Monitor’s determination under subsection (4)(b).
114
Repeal of sections 112 and 113
(1)
Sections 112 and 113 are repealed immediately after section 111 is repealed;
and in consequence of that—
40
(a)
in section 67(2)(a), omit “or under sections 111 and 113 of this Act
(imposition of licence conditions on NHS foundation trusts during
transitional period)”,

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 4 — Pricing
123

(b)
omit section 67(3),
(c)
in section 87(4), after paragraph (a) insert “and”, and
(d)
in section 87(4), omit paragraph (c) and the preceding “and”.
(2)
This section is repealed immediately after sections 112 and 113 are repealed.
Chapter 4
5
Pricing
115
Price payable by commissioners for NHS services
(1)
If a health care service is specified in the national tariff (as to which, see section
116), the price payable for the provision of that service for the purposes of the
NHS is (subject to sections 124 and 125) such price as is determined in
10
accordance with the national tariff on the basis of the price (referred to in this
Chapter as “the national price”) specified in the national tariff for that service.
(2)
If a health care service is not specified in the national tariff, the price payable
for the provision of that service for the purposes of the NHS is such price as is
determined in accordance with the rules provided for in the national tariff for
15
that purpose.
116
The national tariff
(1)
Monitor must publish a document, to be known as “the national tariff”, which
specifies—
(a)
certain health care services which are or may be provided for the
20
purposes of the NHS,
(b)
the method used for determining the national prices of those services,
(c)
the national price of each of those services, and
(d)
the method used for deciding whether to approve an agreement under
section 124 and for determining an application under section 125 (local
25
modifications of prices).
(2)
The national tariff may provide for rules under which the commissioner of a
health care service specified in the national tariff and the providers of that
service may agree to vary—
(a)
the specification of the service under subsection (1)(a), or
30
(b)
the national price of the service.
(3)
Where a variation is agreed in accordance with rules provided for under
subsection (2), the commissioner of the service in question must maintain and
publish a written statement of—
(a)
the variation, and
35
(b)
such other variations as have already been agreed in accordance with
rules provided for under that subsection in the case of that service.
(4)
The national tariff may also—
(a)
specify variations to the national price for a service by reference to
circumstances in which the service is provided or other factors relevant
40
to the provision of the service,

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Part 3 — Regulation of health and adult social care services
Chapter 4 — Pricing
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(b)
provide for rules for determining the price payable for the provision for
the purposes of the NHS of health care services which are not specified
under subsection (1)(a), and
(c)
provide for rules relating to the making of payments to the provider of
a health care service for the provision of that service.
5
(5)
Rules provided for under subsection (4)(b) may specify health care services
which are not specified under subsection (1)(a).
(6)
The national tariff may also provide for rules for determining, where a health
care service is specified in more than one way under subsection (1)(a) or in
more than one way in rules provided for under subsection (4)(b), which
10
specification of the service is to apply in any particular case or cases of any
particular description.
(7)
The national tariff may include guidance as to—
(a)
the application of the method specified under subsection (1)(d),
(b)
the application of rules provided for under subsection (2), (4)(b) or (6),
15
(c)
the discharge of the duty imposed by subsection (3), or
(d)
the application of variations specified under subsection (4)(a),

and a commissioner of a health care service for the purposes of the NHS must
have regard to guidance under this subsection.
(8)
Different methods may be specified under subsection (1)(b) for different
20
descriptions of health care service.
(9)
The national tariff may, in the case of a specified health care service or health
care services of a specified description, specify different national prices or
different variations under subsection (4)(a) in relation to different descriptions
of provider.
25
(10)
A description for the purposes of subsection (9) may not be framed by
reference to—
(a)
whether the provider is in the public or (as the case may be) private
sector, or
(b)
some other aspect of the status of the provider.
30
(11)
The national tariff may not specify a national price for a health care service
provided pursuant to the public health functions of the Secretary of State, or of
a local authority, under the National Health Service Act 2006.
(12)
The national tariff has effect for such period as is specified in the national tariff
(or, where a new edition of the national tariff takes effect before the end of that
35
period, until that new edition takes effect).
(13)
In exercising its functions under this Chapter, Monitor must (in addition to the
matters specified in section 66) have regard to the objectives and requirements
for the time being specified in the mandate published under section 13A of the
National Health Service Act 2006.
40
117
The national tariff: further provision
(1)
The ways in which a health care service may be specified in the national tariff
under section 116(1)(a), or in rules provided for in the national tariff under
section 116(4)(b), include in particular—
(a)
specifying it by reference to its components,
45