Session 2010 - 12
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Other Bills before Parliament

Health and Social Care Bill


Health and Social Care Bill
Part 11 — Miscellaneous

269

 

(3)   

For subsection (2) substitute—

“(2)   

In particular the Commission must—

(a)   

give Monitor any information the Commission has about the

provision of health care which the Commission or Monitor

considers would assist Monitor in the exercise of its functions,

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and

(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

10

(ii)   

such 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

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conditions 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”.

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(5)   

After 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”.

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290     

Other 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.

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(3)   

The 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

35

relation 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)

40

subsection (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.

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Health and Social Care Bill
Part 11 — Miscellaneous

270

 

(6)   

A 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

5

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

the activity, restrictions on the activity, or the performance of obligation

imposed with respect to the carrying on of the activity.

10

(7)   

For the purposes of this section and section 291, 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

State).

(8)   

References in this section and section 291 to functions are references to

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functions so far as exercisable in relation to England.

291     

Breaches of duties to co-operate

(1)   

If the Secretary of State is of the opinion that bodies subject to a relevant co-

operation 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

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the Secretary of State’s opinion to each body.

(2)   

The relevant co-operation duties are—

(a)   

the duty under section 288 (co-operation by Monitor with the Care

Quality Commission),

(b)   

the duties under section 290(1) and (2),

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(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

with each other in the exercise of their respective functions.

(3)   

The Secretary of State must publish each notice given under subsection (1) in

30

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)   

the bodies concerned have breached or are continuing to breach the

duty or, the risk of a breach having materialised, are breaching the

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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

the health service is both beneficial and detrimental, its overall effect is

detrimental).

40

(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

do so.

(6)   

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

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(a)   

may be exercised so as to specify different functions in relation to each

body, but

 
 

Health and Social Care Bill
Part 11 — Miscellaneous

271

 

(b)   

may not be exercised so as to prevent a body from complying with a

requirement 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

5

provision determined by arbitration.

(8)   

An order under subsection (5) must specify the period for which a prohibition

imposed 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

10

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

period 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.

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The Care Quality Commission

292     

Requirement for Secretary of State to approve remuneration policy etc.

In 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,

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allowances or gratuities for the purposes of sub-paragraph (3) or (4),

the Commission must obtain the approval of the Secretary of State to

its policy on that matter.”

293     

Conduct of reviews etc. by Care Quality Commission

(1)   

Part 1 of the Health and Social Care Act 2008 (the Care Quality Commission) is

25

amended as follows.

(2)   

In section 48 (special reviews and investigations)—

(a)   

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

of State,”, and

(b)   

after subsection (1) insert—

30

“(1A)   

The Commission may conduct an investigation under this

section without the approval of the Secretary of State where the

Commission 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)

35

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

“may” insert “, with the approval of the Secretary of State,”.

294     

Failure to discharge functions

(1)   

In section 82 of the Health and Social Care Act 2008 (failure by Commission to

40

 
 

Health and Social Care Bill
Part 11 — Miscellaneous

272

 

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.”

5

(3)   

After subsection (3) of that section insert—

“(4)   

Where the Secretary of State exercises a power under subsection (1) or

(3), the Secretary of State must publish the reasons for doing so.

(5)   

For the purposes of this section a failure to discharge a function

properly includes a failure to discharge it consistently with what the

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Secretary of State considers to be the interests of the health service in

England or (as the case may be) with what otherwise appears to the

Secretary of State to be the purpose for which it is conferred; and “the

health service” has the same meaning as in the National Health Service

Act 2006.”

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(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)   

In section 165 of that Act (directions), at the beginning of subsection (2) insert

“Subject to subsection (3),”.

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(6)   

After that subsection insert—

“(3)   

A direction under section 82 must be given by regulations or by an

instrument in writing.”

Arrangements with devolved authorities etc.

295     

Arrangements between the Board and Northern Ireland Ministers

25

(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)   

Arrangements under this section may be on such terms and conditions as may

be agreed between the parties to the arrangements.

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(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—

“commission” means arrange for the provision of,

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“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

(and, for that purpose, “enactment” includes subordinate legislation

(within the meaning of the Interpretation Act 1978) and Northern

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Ireland legislation), and

“Northern Ireland Minister” includes the First Minister, the deputy First

Minister and a Northern Ireland department.

 
 

 
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Revised 15 March 2012