|
| |
|
| |
(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. |
| 20 |
(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 |
| |
| |
(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 |
| 35 |
(b) | clinical commissioning groups carry out their duties under section |
| |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(a) | whether the persons in question are in the public or (as the case may be) |
| |
| |
(b) | some other aspect of their status. |
| 10 |
| |
“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 |
| |
(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 |
| 30 |
(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, |
| |
| |
|
| |
|
| |
|
(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 |
| 5 |
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 |
| |
| |
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. |
| |
| 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 |
| |
| |
66 | Matters to have regard to in exercise of functions |
| |
(1) | In exercising its functions, Monitor must have regard, in particular, to the need |
| 25 |
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 |
| |
| |
(a) | the desirability of securing continuous improvement in the quality of |
| 30 |
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, |
| 35 |
(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, |
| 40 |
(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, |
| 45 |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
(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 |
| |
| |
(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 |
| |
| |
(b) | its exercise of any of its other functions. |
| |
(3) | Monitor must ignore the functions it has under sections 111 and 113 when |
| |
| 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); |
| 45 |
(d) | a major change in the activities Monitor carries on; |
| |
|
| |
|
| |
|
(e) | a major change in the standard conditions of licences under Chapter 3 |
| |
| |
(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 |
| |
| |
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 |
| |
| |
(b) | what it has done pursuant to that subsection since publishing the |
| |
| |
(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. |
| |
| |
(a) | must be published as soon as practicable after the commencement of |
| 35 |
| |
(b) | must relate to the period of 12 months beginning with the date of |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
(8) | Monitor may not implement the proposal unless the consultation period has |
| |
| |
|
| |
|
| |
|
(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. |
| |
| |
(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 |
| |
| |
(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, |
| |
| |
(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. |
| |
|
| |
|