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 1 — The health service in England
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would include, coincide with or be wholly or partly within the area
specified in the arrangements if the variation were made.
88J
Initial consultation etc. on variation or termination proposal
(1)
This section applies if a variation or termination proposal is made.
(2)
In the case of a variation proposal, the proposer must consult the
5
Secretary of State and the water undertaker who entered into the
arrangements as to whether the arrangements as varied in accordance
with the proposal would be operable and efficient.
(3)
In the case of a termination proposal, the proposer must consult the
Secretary of State and the water undertaker who entered into the
10
arrangements as to whether it would be reasonably practicable to
terminate the arrangements.
(4)
Each person consulted under subsection (2) or (3) must give the
proposer its opinion on the matter mentioned in that subsection.
(5)
The proposer must notify the Secretary of State of the opinion of each
15
water undertaker consulted under subsection (2) or (3).
(6)
If the Secretary of State informs the proposer that the Secretary of State
is of the opinion that the arrangements as varied would not be operable
and efficient or (as the case may be) that it would not be reasonably
practicable to terminate the arrangements, no further steps may be
20
taken in relation to the proposal.
88K
Additional requirements where other local authorities affected
(1)
This section applies where—
(a)
a variation or termination proposal is made,
(b)
the Secretary of State is of the opinion that the arrangements as
25
varied would be operable and efficient or (as the case may be)
that it would be reasonably practicable to terminate the
arrangements,
(c)
one or more local authorities other than the proposer are
affected by the proposal, and
30
(d)
the proposer wishes to take further steps in relation to the
proposal.
(2)
The proposer must notify any other local authority which is affected by
the proposal.
(3)
The proposer must make arrangements for enabling the authorities
35
affected by the proposal to decide whether further steps should be
taken in relation to the proposal.
(4)
The duty in subsection (3) does not apply in relation to the proposal if
the Secretary of State so directs by an instrument in writing.
(5)
The Secretary of State may by regulations provide that the duty in
40
subsection (3) does not apply in prescribed circumstances.
(6)
The Secretary of State must by regulations—
(a)
make provision as to the arrangements which must be made for
the purposes of subsection (3), and

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(b)
prescribe conditions, with respect to the outcome of the
arrangements, which must be satisfied before any further steps
may be taken in relation to the proposal.
88L
Decision on variation or termination proposal
(1)
This section applies where—
5
(a)
a variation or termination proposal is made,
(b)
the Secretary of State is of the opinion that the arrangements
which would result from implementing the proposal would be
operable and efficient or (as the case may be) that it would be
reasonably practicable to terminate the arrangements,
10
(c)
in a case where the duty in section 88K(3) applies, the
conditions prescribed under subsection (6)(b) of that section are
satisfied, and
(d)
the proposer wishes to take further steps in relation to the
proposal.
15
(2)
The proposer must comply with such requirements as may be
prescribed in regulations made by the Secretary of State as to the steps
to be taken for the purposes of consulting and ascertaining opinion in
relation to the proposal.
(3)
The duty in subsection (2) does not apply in relation to the proposal if
20
the Secretary of State so directs by an instrument in writing.
(4)
The Secretary of State may by regulations provide that the duty in
subsection (2) does not apply in prescribed circumstances.
(5)
The proposer of a variation proposal may (after any requirements
imposed by regulations under subsection (2) have been complied with)
25
modify the proposal.
(6)
But, except in circumstances prescribed in regulations by the Secretary
of State, the proposal may not be modified so as to propose the
extension of the boundary of the area specified in the arrangements or,
if the proposal is that the arrangements be varied so as to extend the
30
boundary, may not be modified so as to propose a further extension of
it.
(7)
The proposer must (after any requirements imposed by regulations
under subsection (2) have been complied with) decide whether to
request the Secretary of State to request the water undertaker to vary
35
the arrangements or (as the case may be) to give notice under section
87C(7) to the water undertaker to terminate the arrangements.
(8)
The Secretary of State may by regulations may make provision—
(a)
as to factors which the proposer must or may take into account
in making the decision mentioned in subsection (7);
40
(b)
as to the procedure to be followed by the proposer in exercising
functions under or by virtue of subsection (2) or (7).
88M
Decision-making procedure: exercise of functions by committee
(1)
This section applies in relation to the exercise of functions under or by
virtue of section 88L(2) to (7) (“the relevant functions”) except where
45
the proposer is a single local authority and either—
(a)
no other local authorities are affected by the proposal, or

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(b)
no other local authority which is affected by the proposal
informs the proposer that it wishes to participate in the exercise
of the functions.
(2)
The local authorities affected by the proposal must—
(a)
arrange for an existing joint committee of the authorities to
5
exercise the relevant functions,
(b)
establish a joint committee of the authorities for that purpose, or
(c)
arrange for the Health and Wellbeing Boards established by
them under section 194 of the Health and Social Care Act 2012
to exercise the relevant functions.
10
(3)
The duty in subsection (2) does not apply in relation to the proposal if
the Secretary of State so directs by an instrument in writing.
(4)
The Secretary of State may by regulations provide that the duty in
subsection (2) does not apply in prescribed circumstances.
(5)
Where arrangements are made under subsection (2)(c) the Health and
15
Wellbeing Boards in question must exercise the power conferred by
section 198(b) of the Health and Social Care Act 2012 to establish a joint
sub-committee of the Boards to exercise the relevant functions.
(6)
The Secretary of State may by regulations make provision—
(a)
for subsection (2)(a) to apply only in relation to a joint
20
committee which meets prescribed conditions as to its
membership;
(b)
as to the membership of a joint committee established under
subsection (2)(b) (including provision as to qualification and
disqualification for membership and the holding and vacating
25
of office as a member);
(c)
as to the membership of a joint sub-committee of Health and
Wellbeing Boards established in accordance with subsection (5);
(d)
as to the procedure to be followed by any joint committee, or
any joint sub-committee of Health and Wellbeing Boards, in
30
exercising the relevant functions.
88N
Secretary of State’s duty in relation to requests for variation or
termination
(1)
This section applies if (following the making of a variation or
termination proposal) the Secretary of State is requested—
35
(a)
to request a variation of arrangements entered into under
section 87(1), or
(b)
(as the case may be) to give notice under section 87C(7) to a
water undertaker to terminate such arrangements.
(2)
The Secretary of State must comply with the request if satisfied that the
40
requirements imposed by sections 88I to 88M have been met in relation
to the proposal.
(3)
Subsection (2) does not require the Secretary of State to consider the
adequacy of any steps taken for the purposes of complying with any
requirement to consult or to ascertain opinion which is imposed under
45
or by virtue of section 88J(2) or (3), 88K(6) or 88L(2).

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88O
Power to make regulations as to maintenance of section 87
arrangements
(1)
The Secretary of State may by regulations prescribe circumstances in
which arrangements must be made in accordance with the
regulations—
5
(a)
for consulting and ascertaining opinion on whether
arrangements under section 87(1) (“section 87(1)
arrangements”) should be maintained, and
(b)
for enabling authorities affected by section 87(1) arrangements
to decide whether to propose to the Secretary of State that they
10
be maintained.
(2)
The regulations must make provision requiring the Secretary of State to
give notice under section 87C(7) to a water undertaker to terminate
section 87(1) arrangements entered into by the undertaker if—
(a)
the outcome of arrangements made by virtue of subsection
15
(1)(b) is that the affected authorities decide not to propose that
the section 87(1) arrangements be maintained, and
(b)
the Secretary of State is satisfied that any requirements imposed
by regulations under subsection (1), as to the arrangements to
be made for the purposes mentioned in that subsection, have
20
been met.
(3)
Subsection (2)(b) does not require the Secretary of State to consider the
adequacy of any steps taken for the purposes of complying with any
requirement to consult or to ascertain opinion which is imposed by
regulations made under subsection (1).
25
(4)
The provision that may be made by regulations under subsection (1) (as
to the arrangements to be made for the purposes mentioned in that
subsection) includes provision corresponding, or similar, to any
requirements imposed by or under sections 88K to 88M.”
37
Fluoridation of water supplies: transitional provision
30
(1)
In relation to any time on or after the commencement of section 35, any
relevant arrangements which have effect immediately before its
commencement are to be treated for the purposes of Chapter 4 of Part 3 of the
Water Industry Act 1991 as if they were arrangements entered into by the
water undertaker with the Secretary of State under section 87(1) of that Act.
35
(2)
In subsection (1) “relevant arrangements” means—
(a)
any arrangements entered into by a water undertaker with a Strategic
Health Authority under section 87(1) of the Water Industry Act 1991,
and
(b)
any arrangements which are treated as arrangements falling within
40
paragraph (a) by virtue of section 91 of that Act (as it had effect
immediately before the commencement of this section).
(3)
In its application to arrangements which are treated by virtue of subsection (1)
as arrangements entered into by a water undertaker with the Secretary of State
under section 87(1) of the Water Industry Act 1991, section 88H of that Act
45

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applies as if for subsection (3) there were substituted—
“(3)
The amount to be paid by each of the affected local authorities is to be
determined by agreement between the local authorities.”.
(4)
Section 91 of the Water Industry Act 1991 (pre-1985 fluoridation schemes)
ceases to have effect in relation to arrangements which are (by virtue of
5
subsection (1)) treated as if they were arrangements entered into by a water
undertaker with the Secretary of State under section 87(1) of that Act.
Functions relating to mental health matters
38
Approval functions
(1)
After section 12 of the Mental Health Act 1983 insert—
10
“12ZA
Agreement for exercise of approval function: England
(1)
The Secretary of State may enter into an agreement with another person
for an approval function of the Secretary of State to be exercisable by
the Secretary of State concurrently—
(a)
with that other person, and
15
(b)
if a requirement under section 12ZB has effect, with the other
person by whom the function is exercisable under that
requirement.
(2)
In this section and sections 12ZB and 12ZC, “approval function”
means—
20
(a)
the function under section 12(2), or
(b)
the function of approving persons as approved clinicians.
(3)
An agreement under this section may, in particular, provide for an
approval function to be exercisable by the other party—
(a)
in all circumstances or only in specified circumstances;
25
(b)
in all areas or only in specified areas.
(4)
An agreement under this section may provide for an approval function
to be exercisable by the other party—
(a)
for a period specified in the agreement, or
(b)
for a period determined in accordance with the agreement.
30
(5)
The other party to an agreement under this section must comply with
such instructions as the Secretary of State may give with respect to the
exercise of the approval function.
(6)
An instruction under subsection (5) may require the other party to
cease to exercise the function to such extent as the instruction specifies.
35
(7)
The agreement may provide for the Secretary of State to pay
compensation to the other party in the event of an instruction such as is
mentioned in subsection (6) being given.
(8)
An instruction under subsection (5) may be given in such form as the
Secretary of State may determine.
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(9)
The Secretary of State must publish instructions under subsection (5) in
such form as the Secretary of State may determine; but that does not
apply to an instruction such as is mentioned in subsection (6).
(10)
An agreement under this section may provide for the Secretary of State
to make payments to the other party; and the Secretary of State may
5
make payments to other persons in connection with the exercise of an
approval function by virtue of this section.
12ZB
Requirement to exercise approval functions: England
(1)
The Secretary of State may impose a requirement on the National
Health Service Commissioning Board (“the Board”) or a Special Health
10
Authority for an approval function of the Secretary of State to be
exercisable by the Secretary of State concurrently—
(a)
with the Board or (as the case may be) Special Health Authority,
and
(b)
if an agreement under section 12ZA has effect, with the other
15
person by whom the function is exercisable under that
agreement.
(2)
The Secretary of State may, in particular, require the body concerned to
exercise an approval function—
(a)
in all circumstances or only in specified circumstances;
20
(b)
in all areas or only in specified areas.
(3)
The Secretary of State may require the body concerned to exercise an
approval function—
(a)
for a period specified in the requirement, or
(b)
for a period determined in accordance with the requirement.
25
(4)
Where a requirement under subsection (1) is imposed, the Board or (as
the case may be) Special Health Authority must comply with such
instructions as the Secretary of State may give with respect to the
exercise of the approval function.
(5)
An instruction under subsection (4) may be given in such form as the
30
Secretary of State may determine.
(6)
The Secretary of State must publish instructions under subsection (4) in
such form as the Secretary of State may determine.
(7)
Where the Board or a Special Health Authority has an approval
function by virtue of this section, the function is to be treated for the
35
purposes of the National Health Service Act 2006 as a function that it
has under that Act.
(8)
The Secretary of State may make payments in connection with the
exercise of an approval function by virtue of this section.
12ZC
Provision of information for the purposes of section 12ZA or 12ZB
40
(1)
A relevant person may provide another person with such information
as the relevant person considers necessary or appropriate for or in
connection with—
(a)
the exercise of an approval function; or
(b)
the exercise by the Secretary of State of the power—
45
(i)
to enter into an agreement under section 12ZA;

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(ii)
to impose a requirement under section 12ZB; or
(iii)
to give an instruction under section 12ZA(5) or 12ZB(4).
(2)
The relevant persons are—
(a)
the Secretary of State;
(b)
a person who is a party to an agreement under section 12ZA; or
5
(c)
if the Secretary of State imposes a requirement under section
12ZB on the National Health Service Commissioning Board or a
Special Health Authority, the Board or (as the case may be)
Special Health Authority.
(3)
This section, in so far as it authorises the provision of information by
10
one relevant person to another relevant person, has effect
notwithstanding any rule of common law which would otherwise
prohibit or restrict the provision.
(4)
In this section, “information” includes documents and records.”
(2)
In section 54(1) of that Act (requirement for certain medical evidence etc. to be
15
from practitioner approved under section 12 of the Act), after “the Secretary of
State” insert “, or by another person by virtue of section 12ZA or 12ZB above,”.
(3)
In section 139(4) of that Act (protection for acts done in pursuance of the Act:
exceptions), at the end insert “or against a person who has functions under this
Act by virtue of section 12ZA in so far as the proceedings relate to the exercise
20
of those functions”.
(4)
In section 145(1) of that Act (interpretation), in the definition of “approved
clinician”, after “the Secretary of State” insert “or another person by virtue of
section 12ZA or 12ZB above”.
(5)
In each of the following provisions, after “the Secretary of State” insert “, or by
25
another person by virtue of section 12ZA or 12ZB of that Act,”—
(a)
in section 8(2) of the Criminal Procedure (Insanity) Act 1964
(interpretation), in the definition of “duly approved”,
(b)
in section 51(1) of the Criminal Appeal Act 1968 (interpretation), in the
definition of “duly approved”,
30
(c)
in section 6(1) of the Criminal Procedure (Insanity and Unfitness to
Plead) Act 1991 (interpretation), in the definition of “duly approved”,
(d)
in section 157(6) of the Criminal Justice Act 2003 (mentally disordered
offenders: definition of “medical report”),
(e)
in section 172(1) of the Armed Forces Act 2006 (fitness to stand trial etc:
35
definition of “duly approved”), and
(f)
in section 258(5) of that Act (mentally disordered offenders), in the
definition of “medical report”.
39
Discharge of patients
(1)
In section 23 of the Mental Health Act 1983 (discharge of patients), omit
40
subsections (3) and (3A).
(2)
In section 24 of that Act (visiting and examination of patients), omit subsections
(3) and (4).
(3)
In Schedule 1 to that Act (application of certain provisions of that Act to
patients subject to hospital and guardianship orders)—
45