|
| |
|
(b) | if Monitor has already exercised the power under subsection (5) in |
| |
relation to the levy in the case of that provider, at the time it did so. |
| |
(5) | Monitor may notify the provider that Monitor proposes to adjust the amount |
| |
that the provider is liable to pay so as to reflect the change; and the notice must |
| |
specify the amount of the proposed adjustment. |
| 5 |
(6) | Following the expiry of the period of 28 days beginning with the day after that |
| |
on which Monitor sends the notice, it may make the adjustment. |
| |
(7) | In a case within subsection (2), subsection (4) has effect as if references to the |
| |
financial year were references to the part of the financial year for which the |
| |
provider is to be subject to the levy. |
| 10 |
(8) | Where a provider who reasonably believes that Monitor has miscalculated the |
| |
amount notified to the provider under subsection (1) or (5) requests Monitor to |
| |
recalculate the amount, Monitor must— |
| |
(a) | comply with the request, and |
| |
(b) | send the provider written notice of its recalculation. |
| 15 |
(9) | Subsection (8) does not apply to a request to recalculate an amount in respect |
| |
of a financial year preceding the one in which the request is made. |
| |
(10) | If the whole or part of the amount which a person is liable to pay is not paid by |
| |
the date by which it is required to be paid, the unpaid balance carries interest |
| |
at the rate for the time being specified in section 17 of the Judgments Act 1838; |
| 20 |
and the unpaid balance and accrued interest are recoverable summarily as a |
| |
civil debt (but this does not affect any other method of recovery). |
| |
| |
144 | Investment principles and reviews |
| |
(1) | Monitor must prepare and publish a statement of the principles that govern its |
| 25 |
decisions, or decisions made on its behalf, about making investments for the |
| |
purposes of this Chapter. |
| |
| |
(a) | in each financial year, review the statement, |
| |
(b) | if it considers necessary in light of the review, revise the statement, and |
| 30 |
(c) | if it revises the statement, publish the revised statement. |
| |
(3) | As soon as reasonably practicable after the end of each financial year, Monitor |
| |
must undertake and publish a review of the operation during that year of— |
| |
(a) | the procedure for health special administration under Chapter 5, |
| |
(b) | the procedure for trust special administration for NHS foundation |
| 35 |
trusts under Chapter 5A of Part 2 of the National Health Service Act |
| |
| |
(c) | such mechanisms as have been established under section 134. |
| |
(4) | The purposes of the review under subsection (3)(c) are— |
| |
(a) | to assess the operation of the mechanisms concerned, |
| 40 |
(b) | to assess the accuracy of the estimates given by Monitor in relation to |
| |
the operation of the mechanisms, |
| |
(c) | to assess what improvements can be made to the process for making |
| |
estimates in relation to the operation of the mechanisms, and |
| |
|
| |
|
| |
|
(d) | to review the extent of the protection which the mechanisms are |
| |
| |
(5) | Where a fund established under section 135 has been in operation for the whole |
| |
or part of the year concerned, the review published under this section must |
| |
| 5 |
(a) | the income of the fund during that year, and |
| |
(b) | the expenditure from the fund during that year. |
| |
(6) | Monitor must exclude from a review published under this section information |
| |
which it is satisfied is— |
| |
(a) | commercial information the disclosure of which would, or might, |
| 10 |
significantly harm the legitimate business interests of an undertaking |
| |
| |
(b) | information relating to the private affairs of an individual the |
| |
disclosure of which would, or might, significantly harm that person’s |
| |
| 15 |
| |
| |
(a) | borrow from a deposit-taker such sums as it may from time to time |
| |
require for exercising its functions under this Chapter; |
| |
(b) | give security for sums that it borrows. |
| 20 |
(2) | But Monitor may not borrow if the effect would be— |
| |
(a) | to take the aggregate amount outstanding in respect of the principal of |
| |
sums borrowed by it over such limit as the Secretary of State may by |
| |
| |
(b) | to increase the amount by which the aggregate amount so outstanding |
| 25 |
| |
(3) | In this section, “deposit-taker” means— |
| |
(a) | a person who has permission under Part 4 of the Financial Services and |
| |
| |
(b) | an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to |
| 30 |
that Act which has permission under paragraph 15 of that Schedule (as |
| |
a result of qualifying for authorisation under paragraph 12 of that |
| |
Schedule) to accept deposits. |
| |
(4) | The definition of “deposit-taker” in subsection (3) must be read with— |
| |
(a) | section 22 of the Financial Services and Markets Act 2000, |
| 35 |
(b) | any relevant order under that section, and |
| |
(c) | Schedule 2 to that Act. |
| |
146 | Shortfall or excess of available funds, etc. |
| |
(1) | The Secretary of State may provide financial assistance to Monitor if the |
| |
Secretary of State is satisfied that— |
| 40 |
(a) | there are insufficient funds available from a mechanism established |
| |
| |
(b) | the mechanism is otherwise unable to operate effectively. |
| |
|
| |
|
| |
|
(2) | If the Secretary of State is satisfied that the level of funds available from a |
| |
mechanism established under section 134 exceeds the level that is necessary, |
| |
the Secretary of State may direct Monitor to transfer the excess to the Secretary |
| |
| |
(3) | If the Secretary of State is satisfied that a mechanism established under section |
| 5 |
134 has become dormant, or if a mechanism so established is being wound up, |
| |
the Secretary of State may direct Monitor to transfer to the Secretary of State |
| |
such funds as are available from the mechanism. |
| |
| |
Miscellaneous and general |
| 10 |
147 | Secretary of State’s duty as respects variation in provision of health services |
| |
After section 12D of the National Health Service Act 2006 insert— |
| |
| |
12E | Secretary of State’s duty as respects variation in provision of health |
| |
| 15 |
(1) | The Secretary of State must not exercise the functions mentioned in |
| |
subsection (2) for the purpose of causing a variation in the proportion |
| |
of services provided as part of the health service that is provided by |
| |
persons of a particular description if that description is by reference |
| |
| 20 |
(a) | whether the persons in question are in the public or (as the case |
| |
may be) private sector, or |
| |
(b) | some other aspect of their status. |
| |
(2) | The functions mentioned in this subsection are the functions of the |
| |
Secretary of State under— |
| 25 |
(a) | sections 6E and 13A, and |
| |
(b) | section 75 of the Health and Social Care Act 2012 (requirements |
| |
as to procurement, patient choice and competition).” |
| |
| |
(1) | A notice required under this Part to be given or sent to or served on a person |
| 30 |
(“R”) may be given or sent to or served on R— |
| |
(a) | by being delivered personally to R, |
| |
| |
(i) | by a registered post service, as defined by section 125(1) of the |
| |
Postal Services Act 2000, or |
| 35 |
(ii) | by a postal service which provides for the delivery of the |
| |
document to be recorded, or |
| |
(c) | subject to section 149, by being sent to R by an electronic |
| |
| |
(2) | Where a notice is sent as mentioned in subsection (1)(b), it is, unless the |
| 40 |
contrary is proved, to be taken to have been received on the third day after the |
| |
| |
|
| |
|
| |
|
(3) | Where a notice is sent as mentioned in subsection (1)(c) in accordance with |
| |
section 149, it is, unless the contrary is proved, to be taken to have been |
| |
received on the next working day after the day on which it is transmitted. |
| |
(4) | In subsection (3) “working day” means a day other than— |
| |
(a) | a Saturday or a Sunday; |
| 5 |
(b) | Christmas Day or Good Friday; or |
| |
(c) | a day which is a bank holiday in England under the Banking and |
| |
Financial Dealings Act 1971. |
| |
(5) | A notice required under this Part to be given or sent to or served on a body |
| |
corporate or a firm is duly given, sent or served if it is given or sent to or served |
| 10 |
on the secretary or clerk of that body or a partner of that firm. |
| |
(6) | For the purposes of section 7 of the Interpretation Act 1978 in its application to |
| |
this section, the proper address of a person is— |
| |
(a) | in the case of a person who holds a licence under Chapter 3 who has |
| |
notified Monitor of an address for service, that address, and |
| 15 |
(b) | in any other case, the address determined in accordance with |
| |
| |
| |
(a) | in the case of a secretary or clerk of a body corporate, the address of the |
| |
registered or principal office of the body, |
| 20 |
(b) | in the case of a partner of a firm, the address of the principal office of |
| |
| |
(c) | in any other case, the last known address of the person. |
| |
(8) | In this section and in section 149— |
| |
“electronic communication” has the same meaning as in the Electronic |
| 25 |
| |
“notice” includes any other document. |
| |
(9) | This section is subject to paragraph 4(3) of Schedule 8 (delivery of notice from |
| |
Secretary of State of suspension of non-executive member of Monitor). |
| |
149 | Electronic communications |
| 30 |
(1) | If a notice required or authorised by this Part to be given or sent by or to a |
| |
person or to be served on a person is sent by an electronic communication, it is |
| |
to be treated as given, sent or served only if the requirements of subsection (2) |
| |
| |
(2) | If the person required or authorised to give, send or serve the notice is Monitor |
| 35 |
or the Competition Commission— |
| |
(a) | the person to whom the notice is given or sent or on whom it is served |
| |
must have indicated to Monitor or (as the case may be) the Commission |
| |
the person’s willingness to receive notices by an electronic |
| |
communication and provided an address suitable for that purpose, and |
| 40 |
(b) | the notice must be sent to or given or served at the address so provided. |
| |
(3) | If the person required or authorised to give, send or serve the notice is not |
| |
Monitor or the Competition Commission, the notice must be given, sent or |
| |
served in such manner as Monitor may require. |
| |
|
| |
|
| |
|
(4) | An indication given for the purposes of subsection (2) may be given generally |
| |
for the purposes of notices required or authorised to be given, sent or served |
| |
by Monitor or (as the case may be) the Competition Commission under this |
| |
Part or may be limited to notices of a particular description. |
| |
(5) | Monitor must publish such requirements as it imposes under subsection (3). |
| 5 |
150 | Interpretation, transitional provision and consequential amendments |
| |
| |
“anti-competitive behaviour” has the meaning given in section 64 and |
| |
references to preventing anti-competitive behaviour are to be read in |
| |
accordance with subsection (2) of that section; |
| 10 |
“commissioner”, in relation to a health care service, means the person who |
| |
arranges for the provision of the service (and “commission” is to be |
| |
| |
“enactment” includes an enactment contained in subordinate legislation |
| |
(within the meaning of the Interpretation Act 1978); |
| 15 |
“facilities” has the same meaning as in the National Health Service Act |
| |
2006 (see section 275 of that Act); |
| |
“financial year” means a period of 12 months ending with 31 March; |
| |
“health care” and “health care service” each have the meaning given in |
| |
| 20 |
“the NHS” has the meaning given in that section; |
| |
“prescribed” means prescribed in regulations; |
| |
“service” includes facility. |
| |
(2) | Until section 9 comes into force, the references in this Part to the National |
| |
Health Service Commissioning Board (other than the reference in section |
| 25 |
94(11)(b)) are to be read as references to the NHS Commissioning Board |
| |
| |
(3) | Until the day specified by Secretary of State for the purposes of section 14A of |
| |
the National Health Service Act 2006, the references in this Part to a clinical |
| |
commissioning group (other than the reference in section 94(11)(a)) are to be |
| 30 |
read as references to a Primary Care Trust. |
| |
(4) | Until section 181 comes into force, the following provisions in this Part are to |
| |
be read as if the words “and its Healthwatch England committee” were |
| |
| |
| 35 |
(b) | section 84(5)(a)(iii); |
| |
| |
| |
(5) | Schedule 13 (which contains minor and consequential amendments) has effect. |
| |
|
| |
|
| |
|
| |
NHS foundation trusts & NHS trusts |
| |
Governance and management |
| |
| |
(1) | In paragraph 7 of Schedule 7 to the National Health Service Act 2006 (public |
| 5 |
benefit corporation to have governors)— |
| |
(a) | in sub-paragraph (1), for “a board of governors” substitute “a council of |
| |
| |
(b) | in sub-paragraphs (2), (3) and (4), for “the board” substitute “the |
| |
| 10 |
(2) | Omit paragraph 9(3) of that Schedule (requirement for at least one member of |
| |
council of governors to be appointed by PCT). |
| |
(3) | For paragraph 9(7) of that Schedule (partnership organisations) substitute— |
| |
“(7) | Any organisation specified in the constitution for the purposes of |
| |
this sub-paragraph may appoint one or more members of the council |
| 15 |
(but no more than the number specified for those purposes in the |
| |
| |
(4) | After paragraph 10 of that Schedule insert— |
| |
“10A | The general duties of the council of governors are— |
| |
(a) | to hold the non-executive directors individually and |
| 20 |
collectively to account for the performance of the board of |
| |
| |
(b) | to represent the interests of the members of the corporation as |
| |
a whole and the interests of the public.” |
| |
(5) | After paragraph 10A of that Schedule insert— |
| 25 |
“10B | A public benefit corporation must take steps to secure that the |
| |
governors are equipped with the skills and knowledge they require |
| |
in their capacity as such.” |
| |
(6) | After paragraph 10B of that Schedule insert— |
| |
“10C | For the purpose of obtaining information about the corporation’s |
| 30 |
performance of its functions or the directors’ performance of their |
| |
duties (and deciding whether to propose a vote on the corporation’s |
| |
or directors’ performance), the council of governors may require one |
| |
or more of the directors to attend a meeting.” |
| |
(7) | In paragraph 23(4) of that Schedule (persons eligible for appointment as |
| 35 |
auditor by governors), in sub-paragraph (c), for “the regulator” substitute “the |
| |
| |
(8) | In paragraph 26(2) of that Schedule (information that must be given in annual |
| |
reports etc.), after paragraph (a) insert— |
| |
“(aa) | information on any occasions in the period to which the |
| 40 |
report relates on which the council of governors exercised its |
| |
power under paragraph 10C,”. |
| |
|
| |
|
| |
|
(9) | In consequence of subsection (1)— |
| |
(a) | in sections 33(4)(a) (in each place it appears), 35(2)(c) and (5)(c), 39(3)(a), |
| |
59(1), (2)(b) and (5) and 60(1) of that Act, for “board of governors” |
| |
substitute “council of governors”, |
| |
(b) | in section 60(2) and (3) and paragraphs 8 to 14, 17, 18, 20, 21, 23, 27 and |
| 5 |
28 of Schedule 7 to that Act, for “the board” (in each place it appears) |
| |
substitute “the council”, |
| |
(c) | for the cross-heading preceding paragraph 7 of that Schedule substitute |
| |
| |
(d) | in the cross-heading preceding paragraph 28 of that Schedule, for |
| 10 |
“board” substitute “council”, and |
| |
(e) | in paragraphs 4(2) and 5(1) of Schedule 10 to that Act, for “board of |
| |
governors” substitute “council of governors”. |
| |
| |
(1) | After paragraph 18 of Schedule 7 to the National Health Service Act 2006 |
| 15 |
| |
“18A | The general duty of the board of directors, and of each director |
| |
individually, is to act with a view to promoting the success of the |
| |
corporation so as to maximise the benefits for the members of the |
| |
corporation as a whole and for the public.” |
| 20 |
(2) | After paragraph 18A of that Schedule insert— |
| |
“18B (1) | The duties that a director of a public benefit corporation has by virtue |
| |
of being a director include in particular— |
| |
(a) | a duty to avoid a situation in which the director has (or can |
| |
have) a direct or indirect interest that conflicts (or possibly |
| 25 |
may conflict) with the interests of the corporation; |
| |
(b) | a duty not to accept a benefit from a third party by reason of |
| |
being a director or doing (or not doing) anything in that |
| |
| |
(2) | The duty referred to in sub-paragraph (1)(a) is not infringed if— |
| 30 |
(a) | the situation cannot reasonably be regarded as likely to give |
| |
rise to a conflict of interest, or |
| |
(b) | the matter has been authorised in accordance with the |
| |
| |
(3) | The duty referred to in sub-paragraph (1)(b) is not infringed if |
| 35 |
acceptance of the benefit cannot reasonably be regarded as likely to |
| |
give rise to a conflict of interest. |
| |
(4) | In sub-paragraph (1)(b), “third party” means a person other than— |
| |
| |
(b) | a person acting on its behalf.” |
| 40 |
(3) | After paragraph 18B of that Schedule insert— |
| |
“18C (1) | If a director of a public benefit corporation has in any way a direct or |
| |
indirect interest in a proposed transaction or arrangement with the |
| |
corporation, the director must declare the nature and extent of that |
| |
interest to the other directors. |
| 45 |
|
| |
|