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 1 — Monitor

90

 

62      

General duties

(1)   

The main duty of Monitor in exercising its functions is to protect and promote

the interests of people who use health care services by promoting provision of

health care services which—

(a)   

is economic, efficient and effective, and

5

(b)   

maintains or improves the quality of the services.

(2)   

In carrying out its main duty, Monitor must have regard to the likely future

demand for health care services.

(3)   

Monitor must exercise its functions with a view to preventing anti-competitive

behaviour in the provision of health care services for the purposes of the NHS

10

which is against the interests of people who use such services.

(4)   

Monitor must exercise its functions with a view to enabling health care services

provided for the purposes of the NHS to be provided in an integrated way

where it considers that this would—

(a)   

improve the quality of those services (including the outcomes that are

15

achieved from their provision) or the efficiency of their provision,

(b)   

reduce inequalities between persons with respect to their ability to

access those services, or

(c)   

reduce inequalities between persons with respect to the outcomes

achieved for them by the provision of those services.

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(5)   

Monitor must exercise its functions with a view to enabling the provision of

health care services provided for the purposes of the NHS to be integrated with

the provision of health-related services or social care services where it

considers that this would—

(a)   

improve the quality of those health care services (including the

25

outcomes that are achieved from their provision) or the efficiency of

their provision,

(b)   

reduce inequalities between persons with respect to their ability to

access those health care services, or

(c)   

reduce inequalities between persons with respect to the outcomes

30

achieved for them by the provision of those health care services.

(6)   

Monitor must, in carrying out its duties under subsections (4) and (5), have

regard to the way in which—

(a)   

the National Health Service Commissioning Board carries out its duties

under section 13N of the National Health Service Act 2006, and

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(b)   

clinical commissioning groups carry out their duties under section

14Z1 of that Act.

(7)   

Monitor must secure that people who use health care services, and other

members of the public, are involved to an appropriate degree in decisions that

Monitor makes about the exercise of its functions (other than decisions it makes

40

about the exercise of its functions in a particular case).

(8)   

Monitor must obtain advice appropriate for enabling it effectively to discharge

its functions from persons who (taken together) have a broad range of

professional expertise in—

(a)   

the prevention, diagnosis or treatment of illness (within the meaning of

45

the National Health Service Act 2006), and

(b)   

the protection or improvement of public health.

 
 

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 1 — Monitor

91

 

(9)   

Monitor must exercise its functions in a manner consistent with the

performance by the Secretary of State of the duty under section 1(1) of the

National Health Service Act 2006 (promotion of comprehensive health service).

(10)   

Monitor must not exercise its functions for the purpose of causing a variation

in the proportion of health care services provided for the purposes of the NHS

5

that is provided by persons of a particular description if that description is by

reference to—

(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.

10

(11)   

In this section—

“health-related services” means services that may have an effect on

people’s health but are not health care services or social care services;

“social care services” means services that are provided in pursuance of the

social services functions of local authorities (within the  meaning of the

15

Local Authority Social Services Act 1970).

63      

Secretary of State’s guidance on duty under section 62(9)

(1)   

The Secretary of State may, for the purpose of assisting Monitor to comply with

its duty under section 62(9), publish guidance on—

(a)   

the objectives specified in the mandate published under section 13A of

20

the National Health Service Act 2006 which the Secretary of State

considers to be relevant to Monitor’s exercise of its functions, and

(b)   

the Secretary of State’s reasons for considering those objectives to be

relevant to Monitor’s exercise of its functions.

(2)   

In exercising its functions, Monitor must have regard to guidance under

25

subsection (1).

(3)   

Where the Secretary of State publishes guidance under subsection (1), the

Secretary of State must lay a copy of the published guidance before Parliament.

(4)   

The Secretary of State—

(a)   

may revise guidance under subsection (1), and

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(b)   

if the Secretary of State does so, must publish the guidance as revised

and lay it before Parliament.

64      

General duties: supplementary

(1)   

This section applies for the purposes of this Part.

(2)   

“Anti-competitive behaviour” means behaviour which would (or would be

35

likely to) prevent, restrict or distort competition and a reference to preventing

anti-competitive behaviour includes a reference to eliminating or reducing the

effects (or potential effects) of the behaviour.

(3)   

“Health care” means all forms of health care provided for individuals, whether

relating to physical or mental health, with a reference in this Part to health care

40

services being read accordingly; and for the purposes of this Part it does not

matter if a health care service is also an adult social care service (as to which,

see section 65).

 
 

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 1 — Monitor

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(4)   

“The NHS” means the comprehensive health service continued under section

1(1) of the National Health Service Act 2006, except the part of it that is

provided in pursuance of the public health functions (within the meaning of

that Act) of the Secretary of State or local authorities.

(5)   

A reference to the provision of health care services for the purposes of the NHS

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is a reference to their provision for those purposes in accordance with that Act.

(6)   

Nothing in section 62 requires Monitor to do anything in relation to the supply

to persons who provide health care services of goods that are to be provided as

part of those services.

65      

Power to give Monitor functions relating to adult social care services

10

(1)   

Regulations may provide for specified functions of Monitor also to be

exercisable in relation to adult social care services.

(2)   

Any regulations under this section must apply in relation to England only.

(3)   

The regulations may amend this Part.

(4)   

“Adult social care”—

15

(a)   

includes all forms of personal care and other practical assistance

provided for individuals who, by reason of age, illness, disability,

pregnancy, childbirth, dependence on alcohol or drugs, or any other

similar circumstances, are in need of such care or other assistance, but

(b)   

does not include anything provided by an establishment or agency for

20

which Her Majesty’s Chief Inspector of Education, Children’s Services

and Skills is the registration authority under section 5 of the Care

Standards Act 2000.

66      

Matters to have regard to in exercise of functions

(1)   

In exercising its functions, Monitor must have regard, in particular, to the need

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to maintain the safety of people who use health care services.

(2)   

Monitor must, in exercising its functions, also have regard to the following

matters in so far as they are consistent with the matter referred to in subsection

(1)—

(a)   

the desirability of securing continuous improvement in the quality of

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health care services provided for the purposes of the NHS and in the

efficiency of their provision,

(b)   

the need for commissioners of health care services for the purposes of

the NHS to ensure that the provision of access to the services for those

purposes operates fairly,

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(c)   

the need for commissioners of health care services for the purposes of

the NHS to ensure that people who require health care services for

those purposes are provided with access to them,

(d)   

the need for commissioners of health care services for the purposes of

the NHS to make the best use of resources when doing so,

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(e)   

the desirability of persons who provide health care services for the

purposes of the NHS co-operating with each other in order to improve

the quality of health care services provided for those purposes,

(f)   

the need to promote research into matters relevant to the NHS by

persons who provide health care services for the purposes of the NHS,

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Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 1 — Monitor

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(g)   

the need for high standards in the education and training of health care

professionals who provide health care services for the purposes of the

NHS, and

(h)   

where the Secretary of State publishes a document for the purposes of

section 13E of the National Health Service Act 2006 (improvement of

5

quality of services), any guidance published by the Secretary of State on

the parts of that document which the Secretary of State considers to be

particularly relevant to Monitor’s exercise of its functions.

(3)   

Where the Secretary of State publishes guidance referred to in subsection

(2)(h), the Secretary of State must lay a copy of the published guidance before

10

Parliament.

(4)   

The Secretary of State—

(a)   

may revise the guidance, and

(b)   

if the Secretary of State does so, must publish the guidance as revised

and lay it before Parliament.

15

67      

Conflicts between functions

(1)   

In a case where Monitor considers that any of its general duties conflict with

each other, it must secure that the conflict is resolved in the manner it considers

best.

(2)   

Monitor must act so as to secure that there is not, and could not reasonably be

20

regarded as being, a conflict between—

(a)   

its exercise of any of its functions under Chapter 5 of Part 2 of the

National Health Service Act 2006 (regulation of NHS foundation trusts)

or under sections 111 and 113 of this Act (imposition of licence

conditions on NHS foundation trusts during transitional period) or

25

under paragraph 17 of Schedule 8 to this Act (accounts of NHS

foundation trusts), and

(b)   

its exercise of any of its other functions.

(3)   

Monitor must ignore the functions it has under sections 111 and 113 when

exercising—

30

(a)   

its functions under Chapter 2 (competition);

(b)   

its functions under Chapter 4 (pricing).

(4)   

If Monitor secures the resolution of a conflict between its general duties in a

case that comes within subsection (5), or that Monitor considers is otherwise of

unusual importance, it must publish a statement setting out—

35

(a)   

the nature of the conflict,

(b)   

the manner in which it decided to resolve it, and

(c)   

its reasons for deciding to resolve it in that manner.

(5)   

A case comes within this subsection if it involves—

(a)   

a matter likely to have a significant impact on persons who provide

40

health care services for the purposes of the NHS;

(b)   

a matter likely to have a significant impact on people who use health

care services provided for the purposes of the NHS;

(c)   

a matter likely to have a significant impact on the general public in

England (or in a particular part of England);

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(d)   

a major change in the activities Monitor carries on;

 
 

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 1 — Monitor

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(e)   

a major change in the standard conditions of licences under Chapter 3

(see section 94).

(6)   

Where Monitor is required to publish a statement under subsection (4), it must

do so as soon as reasonably practicable after making its decision.

(7)   

The duty under subsection (4) does not apply in so far as Monitor is subject to

5

an obligation not to publish a matter that needs to be included in the statement.

(8)   

Every annual report of Monitor must include—

(a)   

a statement of the steps it has taken in the financial year to which the

report relates to comply with the duty under subsection (2), and

(b)   

a summary of the manner in which, in that financial year, Monitor has

10

secured the resolution of conflicts between its general duties arising in

cases of the kind referred to in subsection (5).

(9)   

Monitor’s general duties for the purposes of this section are its duties under

sections 62 and 66.

68      

Duty to review regulatory burdens

15

(1)   

Monitor must keep the exercise of its functions under review and secure that

in exercising its functions it does not—

(a)   

impose burdens which it considers to be unnecessary, or

(b)   

maintain burdens which it considers to have become unnecessary.

(2)   

In keeping the exercise of its functions under review, Monitor must have

20

regard to such principles as appear to it to represent best regulatory practice.

(3)   

Subsection (1) does not require the removal of a burden which has become

unnecessary where its removal would, having regard to all the circumstances,

be impractical or disproportionate.

(4)   

Monitor must from time to time publish a statement setting out—

25

(a)   

what it proposes to do pursuant to subsection (1) in the period to which

the statement relates,

(b)   

what it has done pursuant to that subsection since publishing the

previous statement, and

(c)   

where a burden relating to the exercise of the function which has

30

become unnecessary is maintained pursuant to subsection (3), the

reasons why removal of the burden would, having regard to all the

circumstances, be impractical or disproportionate.

(5)   

The first statement—

(a)   

must be published as soon as practicable after the commencement of

35

this section, and

(b)   

must relate to the period of 12 months beginning with the date of

publication.

(6)   

A subsequent statement—

(a)   

must be published during the period to which the previous statement

40

related or as soon as reasonably practicable after that period, and

(b)   

must relate to the period of 12 months beginning with the end of the

previous period.

 
 

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 1 — Monitor

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(7)   

Monitor must, in exercising its functions, have regard to the statement that is

in force at the time in question.

(8)   

Monitor may revise a statement before or during the period to which it relates;

and, if it does so, it must publish the revision as soon as reasonably practicable.

69      

Duty to carry out impact assessments

5

(1)   

This section applies where Monitor is proposing to do something that it

considers would be likely—

(a)   

to have a significant impact on persons who provide health care

services for the purposes of the NHS;

(b)   

to have a significant impact on people who use health care services

10

provided for the purposes of the NHS;

(c)   

to have a significant impact on the general public in England (or in a

particular part of England);

(d)   

to involve a major change in the activities Monitor carries on;

(e)   

to involve a major change in the standard conditions of licences under

15

Chapter 3 (see section 94).

(2)   

But this section does not apply to—

(a)   

the carrying out by Monitor of an analysis of how markets involving

the provision of health care services are operating, or

(b)   

the exercise of functions under or by virtue of Chapter 2.

20

(3)   

Nor does this section apply if it appears to Monitor that the urgency of the

matter makes compliance with this section impracticable or inappropriate.

(4)   

Before implementing the proposal, Monitor must either—

(a)   

carry out and publish an assessment of the likely impact of

implementation, or

25

(b)   

publish a statement setting out its reasons for concluding that it does

not need to carry out an assessment under paragraph (a).

(5)   

The assessment must set out Monitor’s explanation of how the discharge of its

general duties (within the meaning of section 67)—

(a)   

would be secured by implementation of the proposal, but

30

(b)   

would not be secured by the exercise of functions that Monitor has by

virtue of section 72 or 73.

(6)   

The assessment may take such form, and relate to such matters, as Monitor

may determine; and in determining the matters to which the assessment is to

relate, Monitor must have regard to such general guidance on carrying out

35

impact assessments as it considers appropriate.

(7)   

The assessment must specify the consultation period within which

representations with respect to the proposal may be made to Monitor; and for

that purpose the consultation period must not be less than 28 days beginning

with the day after that on which the assessment is published under subsection

40

(4).

(8)   

Monitor may not implement the proposal unless the consultation period has

ended.

 
 

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Part 3 — Regulation of health and adult social care services
Chapter 1 — Monitor

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(9)   

Where Monitor is required (apart from this section) to consult about, or afford

a person an opportunity to make representations about, a proposal that comes

within subsection (1), the requirements of this section—

(a)   

are in addition to the other requirement, but

(b)   

may be met contemporaneously with it.

5

(10)   

Every annual report of Monitor must set out—

(a)   

a list of the assessments carried out under this section during the

financial year to which the report relates, and

(b)   

a summary of the decisions taken during that year in relation to

proposals to which assessments carried out during that year or a

10

previous financial year relate.

70      

Information

(1)   

Information obtained by, or documents, records or other items produced to,

Monitor in connection with any of its functions may be used by Monitor in

connection with any of its other functions.

15

(2)   

For the purposes of exercising a function under this Part, the Secretary of State

may request Monitor to provide the Secretary of State with such information

as the Secretary of State may specify.

(3)   

Monitor must comply with a request under subsection (2).

71      

Failure to perform functions

20

(1)   

This section applies if the Secretary of State considers that Monitor is failing, or

has failed, to perform any function of Monitor’s, other than a function it has by

virtue of section 72 or 73, and that the failure is significant.

(2)   

The Secretary of State may direct Monitor to perform such of those functions,

and in such manner and within such period, as the direction specifies.

25

(3)   

But the Secretary of State may not give a direction under subsection (2) in

relation to the performance of functions in a particular case.

(4)   

If Monitor fails to comply with a direction under subsection (2), the Secretary

of State may—

(a)   

perform the functions to which the direction relates, or

30

(b)   

make arrangements for some other person to perform them on the

Secretary of State’s behalf.

(5)   

Where the Secretary of State exercises a power under subsection (2) or (4), the

Secretary of State must publish the reasons for doing so.

(6)   

For the purposes of this section—

35

(a)   

a failure to perform a function includes a failure to perform it properly,

and

(b)   

a failure to perform a function properly includes a failure to perform it

consistently with what the Secretary of State considers to be the

interests of the health service in England or (as the case may be) with

40

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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