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
75

(a)
in Part 1, in paragraph 1, omit “24(3) and (4),”, and
(b)
in Part 2, in paragraph 1, omit “24(3) and (4),”.
(4)
In consequence of the repeals made by this section—
(a)
in the National Health Service and Community Care Act 1990, in
Schedule 9—
5
(i)
omit paragraph 24(3)(a) and the “and” following it, and
(ii)
omit paragraph 24(4),
(b)
in the Health Authorities Act 1995, in Schedule 1, omit paragraph
107(2)(a) and (3),
(c)
in the Care Standards Act 2000, in Schedule 4, omit paragraph 9(3),
10
(d)
in the Health and Social Care (Community Health and Standards) Act
2003, in Schedule 4, omit paragraphs 53(a) and 54,
(e)
in the Domestic Violence, Crime and Victims Act 2004—
(i)
omit sections 37A(5), 38A(3), 43A(5) and 44A(3),
(ii)
in section 37A(7)(a), omit “, (5)”, and
15
(iii)
in section 43A(7), omit “, (5)”, and
(f)
in the Mental Health Act 2007, in Schedule 3, omit paragraphs 10(5) and
(6) and 11(3) and (4).
40
After-care
(1)
Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.
20
(2)
In subsection (2)—
(a)
after “duty of the” insert “clinical commissioning group or”,
(b)
omit “Primary Care Trust or” in each place it appears,
(c)
for “such time as the” substitute “such time as (in relation to England)
the clinical commissioning group or”.
25
(3)
After subsection (2C) insert—
“(2D)
Subsection (2), in its application to the clinical commissioning group,
has effect as if for “to provide” there were substituted “to arrange for
the provision of”.
(2E)
The Secretary of State may by regulations provide that the duty
30
imposed on the clinical commissioning group by subsection (2) is, in
the circumstances or to the extent prescribed by the regulations, to be
imposed instead on another clinical commissioning group or the
National Health Service Commissioning Board.
(2F)
Where regulations under subsection (2E) provide that the duty
35
imposed by subsection (2) is to be imposed on the National Health
Service Commissioning Board, subsections (2D and (2E) have effect as
if references to the clinical commissioning group were references to the
National Health Service Commissioning Board.
(2G)
Section 272(7) and (8) of the National Health Service Act 2006 applies to
40
the power to make regulations under subsection (2E) as it applies to a
power to make regulations under that Act.”
(4)
In subsection (3)—
(a)
after “section “the” insert “clinical commissioning group or”,
(b)
omit “Primary Care trust or” in each place it appears, and
45

Health and Social Care Bill
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(c)
after “means the”, in the first place it appears, insert “clinical
commissioning group or”.
(5)
In consequence of the repeals made by subsections (2)(b) and (5)(b), omit
paragraph 47 of Schedule 2 to the National Health Service Reform and Health
Care Professions Act 2002.
5
41
Provision of pocket money for in-patients
(1)
Section 122 of the Mental Health Act 1983 (provision of pocket money for in-
patients) is amended as follows.
(2)
In subsection (1)—
(a)
for “Secretary of State may” substitute “Welsh Ministers may (in
10
relation to Wales)”,
(b)
for “he thinks fit” substitute “the Welsh Ministers think fit”,
(c)
for “their” substitute “those persons’”,
(d)
for “him” substitute “the Welsh Ministers”, and
(e)
for “they” substitute “those persons”.
15
(3)
In subsection (2)—
(a)
omit “the National Health Service Act 2006 and”, and
(b)
for “either of those Acts” substitute “that Act”.
(4)
In section 146 of that Act (application to Scotland), omit “122,”.
42
Transfers to and from special hospitals
20
(1)
Omit section 123 of the Mental Health Act 1983 (transfers to and from special
hospitals).
(2)
In section 68A of that Act (power to reduce periods after which cases must be
referred to tribunal), in subsection (4)—
(a)
after paragraph (c), insert “or”,
25
(b)
omit the “or” following paragraph (d), and
(c)
omit paragraph (e).
(3)
In section 138 of that Act (retaking of patients escaping from custody), in
subsection (4)(a), omit “or under section 123 above”.
(4)
In consequence of the repeal made by subsection (1), omit paragraph 67 of
30
Schedule 4 to the Health Act 1999.
(5)
This section does not affect—
(a)
the authority for the detention of a person who is liable to be detained
under the Mental Health Act 1983 before the commencement of this
section,
35
(b)
that Act in relation to any application, order or direction for admission
or removal to a hospital made under that Act before that
commencement, or
(c)
the authority for the retaking of a person who, before that
commencement, escapes while being taken to or from a hospital as
40
mentioned in section 138(4)(a) of that Act.

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43
Independent mental health advocates
(1)
In section 130A of the Mental Health Act 1983 (independent mental health
advocates: England), in subsection (1)—
(a)
for “The Secretary of State” substitute “A local social services authority
whose area is in England”, and
5
(b)
at the end insert “for whom the authority is responsible for the
purposes of this section”.
(2)
In subsection (4) of that section, for “the Secretary of State” substitute “a local
social services authority”.
(3)
In section 130C of that Act (provision supplementary to section 130A), after
10
subsection (4) insert—
“(4A)
A local social services authority is responsible for a qualifying patient
if—
(a)
in the case of a qualifying patient falling within subsection (2)(a)
above, the hospital or registered establishment in which he is
15
liable to be detained is situated in that authority’s area;
(b)
in the case of a qualifying patient falling within subsection (2)(b)
above, that authority is the responsible local social services
authority within the meaning of section 34(3) above;
(c)
in the case of a qualifying patient falling within subsection
20
(2)(c), the responsible hospital is situated in that authority’s
area;
(d)
in the case of a qualifying patient falling within subsection (3)—
(i)
in a case where the patient has capacity or is competent
to do so, he nominates that authority as responsible for
25
him for the purposes of section 130A above, or
(ii)
in any other case, a donee or deputy or the Court of
Protection, or a person engaged in caring for the patient
or interested in his welfare, nominates that authority on
his behalf as responsible for him for the purposes of that
30
section.
(4B)
In subsection (4A)(d) above—
(a)
the reference to a patient who has capacity is to be read in
accordance with the Mental Capacity Act 2005;
(b)
the reference to a donee is to a donee of a lasting power of
35
attorney (within the meaning of section 9 of that Act) created by
the patient, where the donee is acting within the scope of his
authority and in accordance with that Act;
(c)
the reference to a deputy is to a deputy appointed for the patient
by the Court of Protection under section 16 of that Act, where
40
the deputy is acting within the scope of his authority and in
accordance with that Act.”
(4)
In Schedule 1 to the Local Authority Social Services Act 1970 (social services
functions), in the entry for the Mental Health Act 1983, at the appropriate place

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Part 1 — The health service in England
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insert—

“Section 130A
Making arrangements to enable

independent mental health

advocates to be available to help

qualifying patients”.

5
44
Patients’ correspondence
(1)
In section 134 of the Mental Health Act 1983 (patients’ correspondence), in
subsection (1)—
(a)
before “the approved clinician” insert “or”, and
(b)
omit “or the Secretary of State”.
10
(2)
Subsection (1) of this section does not affect the validity of any requests made
to the Secretary of State under section 134(1) of that Act and having effect
immediately before the commencement of this section.
45
Notification of hospitals having arrangements for special cases
(1)
In section 140 of the Mental Health Act 1983 (notification of hospitals having
15
arrangements for special cases)—
(a)
after “the duty of” insert “every clinical commissioning group and of”,
(b)
omit “every Primary Care Trust and of”,
(c)
after “the area of the” insert “clinical commissioning group or”,
(d)
omit “Primary Care Trust or” in the first place it appears,
20
(e)
after “available to the” insert “clinical commissioning group or”, and
(f)
omit “Primary Care Trust or” in the second place it appears.
(2)
In consequence of the repeals made by this section, in the National Health
Service Reform and Health Care Professions Act 2002, in Schedule 2, omit
paragraph 48(a) and (c).
25
Emergency powers
46
Role of the Board and clinical commissioning groups in respect of
emergencies
For the cross-heading preceding section 253 of the National Health Service Act
2006 substitute “Emergencies: role of the Secretary of State, the Board and
30
clinical commissioning groups” and after the cross-heading insert—
“252A
Role of the Board and clinical commissioning groups in respect of
emergencies
(1)
The Board and each clinical commissioning group must take
appropriate steps for securing that it is properly prepared for dealing
35
with a relevant emergency.
(2)
The Board must take such steps as it considers appropriate for securing
that each clinical commissioning group is properly prepared for
dealing with a relevant emergency.

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(3)
The steps taken by the Board under subsection (2) must include
monitoring compliance by each clinical commissioning group with its
duty under subsection (1).
(4)
The Board must take such steps as it considers appropriate for securing
that each relevant service provider is properly prepared for dealing
5
with a relevant emergency.
(5)
The steps taken by the Board under subsection (4) must include
monitoring compliance by the service provider with any requirements
imposed on it by its service arrangements for the purpose of securing
that it is properly prepared for dealing with a relevant emergency.
10
(6)
The Board may take such steps as it considers appropriate for
facilitating a co-ordinated response to an emergency by the clinical
commissioning groups and relevant service providers for which it is a
relevant emergency.
(7)
The Board may arrange for any body or person to exercise any
15
functions of the Board under subsections (2) to (6).
(8)
Where the Board makes arrangements with another body or person
under subsection (7) it may also arrange for that other body or person
to exercise any functions that the Board has, by virtue of being a
Category 1 responder, under Part 1 of the Civil Contingencies Act 2004.
20
(9)
A relevant service provider must appoint an individual to be
responsible for—
(a)
securing that the provider is properly prepared for dealing with
a relevant emergency,
(b)
securing that the provider complies with any requirements
25
mentioned in subsection (5), and
(c)
providing the Board with such information as it may require for
the purpose of discharging its functions under this section.
(10)
In this section—
“relevant emergency”—
30
(a)
in relation to the Board or a clinical commissioning
group, means any emergency which might affect the
Board or the group (whether by increasing the need for
the services that it may arrange or in any other way);
(b)
in relation to a relevant service provider, means any
35
emergency which might affect the provider (whether by
increasing the need for the services that it may provide
or in any other way);
“relevant service provider” means any body or person providing
services in pursuance of service arrangements;
40
“service arrangements”, in relation to a relevant service provider,
means arrangements made by the Board or a clinical
commissioning group under or by virtue of section 3, 3A, 3B, 4
or 7A or Schedule 1.”
47
Secretary of State’s emergency powers
45
(1)
Section 253 of the National Health Service Act 2006 (emergency powers) is
amended as follows.

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(2)
In subsection (1) for the words from “it is necessary” to the end of the
subsection substitute “it is appropriate to do so”.
(3)
After subsection (1) insert—
“(1A)
A direction under this section may be given to—
(a)
an NHS body other than a Local Health Board;
5
(b)
the National Institute for Health and Care Excellence;
(c)
the Health and Social Care Information Centre;
(d)
any body or person, other than an NHS body, providing
services in pursuance of arrangements made—
(i)
by the Secretary of State under section 12,
10
(ii)
by the Board or a clinical commissioning group under
section 3, 3A, 3B or 4 or Schedule 1,
(iii)
by a local authority for the purpose of the exercise of its
functions under or by virtue of section 2B or 6C(1) or
Schedule 1, or
15
(iv)
by the Board, a clinical commissioning group or a local
authority by virtue of section 7A.”
(4)
For subsection (2) substitute—
“(2)
In relation to a body within subsection (1A)(a) to (c), the powers
conferred by this section may be exercised—
20
(a)
to give directions to the body about the exercise of any of its
functions;
(b)
to direct the body to cease to exercise any of its functions for a
specified period;
(c)
to direct the body to exercise any of its functions concurrently
25
with another body or person for a specified period;
(d)
to direct the body to exercise any function conferred on another
body or person under or by virtue of this Act for a specified
period (whether to the exclusion of, or concurrently with, that
body or person).
30
(2A)
In relation to a body or person within subsection (1A)(d), the powers
conferred by this section may be exercised—
(a)
to give directions to the body or person about the provision of
any services that it provides in pursuance of arrangements
mentioned in subsection (1A)(d);
35
(b)
to direct the body or person to cease to provide any of those
services for a specified period;
(c)
to direct the body or person to provide other services for the
purposes of the health service for a specified period.”
(5)
After subsection (2A) insert—
40
“(2B)
The Secretary of State may direct the Board to exercise the functions of
the Secretary of State under this section.
(2C)
The Secretary of State may give directions to the Board about its
exercise of any functions that are the subject of a direction under
subsection (2B).
45
(2D)
In this section, “specified” means specified in the direction.”

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(6)
Omit subsection (4) (exclusion of NHS foundation trusts from application of
emergency powers).
(7)
In section 273 of that Act (further provision about orders and directions under
the Act), in subsection (4)(c)(ii), for “or 120” substitute “, 120 or 253”.
Miscellaneous
5
48
New Special Health Authorities
(1)
After section 28 of the National Health Service Act 2006 (special health
authorities) insert—
“28A
Special Health Authorities: further provision
(1)
This section applies in relation to an order under section 28 which is
10
made after the coming into force of section 48 of the Health and Social
Care Act 2012.
(2)
The order must include—
(a)
provision for the abolition of the Special Health Authority on a
day specified in the order, and
15
(b)
provision as to the transfer of officers, property and liabilities of
the Authority on its abolition.
(3)
The day specified in accordance with subsection (2)(a) must be within
the period of 3 years beginning with the day on which the Special
Health Authority is established.
20
(4)
The power (by virtue of section 273(1)) to vary an order under section
28 includes power to vary the provision mentioned in subsection (2)
by—
(a)
providing for the abolition of the Special Health Authority on a
day which is earlier or later than the day for the time being
25
specified in the order;
(b)
making different provision as to the matters mentioned in
subsection (2)(b).
(5)
If an order is varied to provide for the abolition of the Special Health
Authority on a later day, that day must be within the period of 3 years
30
beginning with the day on which the Special Health Authority would
(but for the variation) have been abolished.”
(2)
In section 272 of that Act (orders, regulations, rules and directions), in
subsection (6), after paragraph (zb) insert—
“(zc)
an order under section 28 which varies such an order as
35
mentioned in section 28A(5),”.