Health and Social Care Bill

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 2 — Competition
97

Chapter 2
Competition
72
Functions under the Competition Act 1998
(1)
The functions referred to in subsection (2) are concurrent functions of Monitor
and the Office of Fair Trading.
5
(2)
The functions are those that the Office of Fair Trading has under Part 1 of the
Competition Act 1998, other than sections 31D(1) to (6), 38(1) to (6) and 51, so
far as relating to any of the following which concern the provision of health
care services in England—
(a)
agreements, decisions or concerted practices of the kind mentioned in
10
section 2(1) of that Act (anti-competitive practices),
(b)
conduct of the kind mentioned in section 18(1) of that Act (abuse of
dominant position),
(c)
agreements, decisions or concerted practices of the kind mentioned in
Article 101 of the Treaty on the Functioning of the European Union
15
(anti-competitive practices),
(d)
conduct which amounts to abuse of the kind mentioned in Article 102
of that Treaty (abuse of dominant position).
(3)
So far as necessary for the purposes of subsections (1) and (2), references in Part
1 of the Competition Act 1998 to the Office of Fair Trading are to be read as
20
including references to Monitor, except in sections 31D(1) to (6), 38(1) to (6), 51,
52(6) and (8) and 54).
73
Functions under Part 4 of the Enterprise Act 2002
(1)
The functions referred to in subsection (2) are concurrent functions of Monitor
and the Office of Fair Trading.
25
(2)
The functions are those that the Office of Fair Trading has under Part 4 of the
Enterprise Act 2002 (market investigations), other than sections 166 and 171, so
far as relating to activities which concern the provision of health care services
in England.
(3)
So far as necessary for the purposes of subsections (1) and (2), references in Part
30
4 of the Enterprise Act 2002 to the Office of Fair Trading (including references
in provisions of that Act applied by that Part) are to be read as including
references to Monitor, except in sections 166 and 171.
(4)
Before the Office of Fair Trading or Monitor first exercises functions which are
exercisable concurrently by virtue of this section, it must consult the other.
35
(5)
Neither the Office of Fair Trading nor Monitor may exercise in relation to any
matter functions which are exercisable concurrently by virtue of this section if
functions which are so exercisable have been exercised in relation to that
matter by the other.
(6)
Section 117 of the Enterprise Act 2002 (offences of supplying false or
40
misleading information) as applied by section 180 of that Act is to have effect
so far as relating to functions exercisable by Monitor by virtue of this section as
if the references in section 117(1)(a) and (2) to the Office of Fair Trading
included references to Monitor.

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Part 3 — Regulation of health and adult social care services
Chapter 2 — Competition
98

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Competition functions: supplementary
(1)
No objection may be taken to anything done by or in relation to Monitor under
the Competition Act 1998 or Part 4 of the Enterprise Act 2002 on the ground
that it should have been done by or in relation to the Office of Fair Trading.
(2)
Subject to subsection (3), sections 62 and 66 (general duties of Monitor) do not
5
apply in relation to anything done by Monitor in the carrying out of its
functions by virtue of section 72 or 73.
(3)
In the carrying out of any functions by virtue of section 72 or 73, Monitor may
nevertheless have regard to any of the matters in respect of which a duty is
imposed by section 62 or 66 if it is a matter to which the Office of Fair Trading
10
is entitled to have regard in the carrying out of those functions.
(4)
In section 9E of the Company Directors Disqualification Act 1986 (specified
regulators in cases of disqualification for competition infringements), in
subsection (2) after paragraph (e) insert “;
(f)
Monitor.”
15
(5)
In section 54 of the Competition Act 1998, in subsection (1) (definition of
“regulator” for the purposes of Part 1 of that Act)—
(a)
omit the “and” preceding paragraph (g), and
(b)
after that paragraph insert “; and
(h)
Monitor.”
20
(6)
In section 136 of the Enterprise Act 2002 (investigations and reports on market
investigation references)—
(a)
in subsection (7) (meaning of “relevant sectoral enactment”), at the end
insert—
“(i)
in relation to Monitor, section 73 of the Health and Social
25
Care Act 2012.”,
(b)
in subsection (8) (meaning of “relevant sectoral regulator”), for
“Communications or” substitute “Communications,”, and
(c)
in that subsection, after “Utility Regulation” insert “or Monitor”.
(7)
In section 168 of that Act (regulated markets)—
30
(a)
in subsection (3) (meaning of “relevant action”), after paragraph (o)
insert—
“(p)
modifying the conditions of a licence issued under
section 87 of the Health and Social Care Act 2012.”,
(b)
in subsection (4) (meaning of “relevant statutory functions”), after
35
paragraph (q) insert—
“(r)
in relation to any licence issued under section 87 of the
Health and Social Care Act 2012, the duties of Monitor
under sections 62 and 66 of that Act.”, and
(c)
in subsection (5) (meaning of “sectoral regulator”), after paragraph (i)
40
insert—
“(ia)
Monitor;”.
75
Requirements as to procurement, patient choice and competition
(1)
Regulations may impose requirements on the National Health Service
Commissioning Board and clinical commissioning groups for the purpose of
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Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 2 — Competition
99

securing that, in commissioning health care services for the purposes of the
NHS, they—
(a)
adhere to good practice in relation to procurement;
(b)
protect and promote the right of patients to make choices with respect
to treatment or other health care services provided for the purposes of
5
the NHS;
(c)
do not engage in anti-competitive behaviour which is against the
interests of people who use such services.
(2)
Requirements imposed by regulations under this section apply to an
arrangement for the provision of goods and services only if the value of the
10
consideration attributable to the services is greater than that attributable to the
goods.
(3)
Regulations under this section may, in particular, impose requirements
relating to—
(a)
competitive tendering for the provision of services;
15
(b)
the management of conflicts between the interests involved in
commissioning services and the interests involved in providing them.
(4)
The regulations may provide for the requirements imposed, or such of them as
are prescribed, not to apply in relation to arrangements of a prescribed
description.
20
76
Requirements under section 75: investigations, declarations and directions
(1)
Regulations under section 75 may confer on Monitor—
(a)
a power to investigate a complaint that the National Health Service
Commissioning Board or a clinical commissioning group has failed to
comply with a requirement imposed by the regulations;
25
(b)
a power to investigate on its own initiative whether the Board or a
clinical commissioning group has failed to comply with a requirement
imposed by virtue of section 75(1)(c);
(c)
a power to require the Board or a clinical commissioning group to
provide it with such information as Monitor may specify for the
30
purposes of an investigation it carries out by virtue of paragraph (a) or
(b);
(d)
a power to require the Board or a clinical commissioning group to
provide an explanation of such information as it provides by virtue of
paragraph (c).
35
(2)
A power conferred by virtue of subsection (1)(a) is exercisable only where
Monitor considers that the person making the complaint has sufficient interest
in the arrangement to which the complaint relates.
(3)
Regulations under section 75 may confer on Monitor a power to declare that an
arrangement for the provision of health care services for the purposes of the
40
NHS is ineffective.
(4)
A power conferred by virtue of subsection (3) is exercisable only in prescribed
circumstances and subject to prescribed restrictions and only where Monitor is
satisfied that—
(a)
the National Health Service Commissioning Board or a clinical
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commissioning group has failed to comply with a requirement of
regulations under section 75, and

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Part 3 — Regulation of health and adult social care services
Chapter 2 — Competition
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(b)
the failure is sufficiently serious.
(5)
On a declaration being made by virtue of subsection (3), the arrangement is
void; but that does not affect—
(a)
the validity of anything done pursuant to the arrangement,
(b)
any right acquired or liability incurred under the arrangement, or
5
(c)
any proceedings or remedy in respect of such a right or liability.
(6)
Regulations under section 75 may confer on Monitor a power to direct the
National Health Service Commissioning Board or a clinical commissioning
group—
(a)
to put in place measures for the purpose of preventing failures to
10
comply with requirements imposed by the regulations or mitigating
the effect of such failures;
(b)
to remedy a failure to comply with such a requirement;
(c)
not to exercise in a prescribed manner prescribed functions in relation
to arrangements for the provision of health care services;
15
(d)
to vary or withdraw an invitation to tender for the provision of health
care services;
(e)
to vary an arrangement for the provision of health care services made
in consequence of putting the provision of the services out to tender.
(7)
A failure to comply with a requirement imposed by regulations under section
20
75 which causes loss or damage is actionable, except in so far as the regulations
restrict the right to bring such an action.
(8)
Regulations under section 75 may—
(a)
provide for a specified defence to such an action;
(b)
prevent a person who has brought such an action under the Public
25
Contracts Regulations 2006 (S.I. 2006/5) from bringing such an action
under the regulations under section 75 in respect of the whole or part
of the same loss or damage.
77
Requirements under section 75: undertakings
(1)
Regulations under section 75 may confer on Monitor a power to accept an
30
undertaking (referred to in this Chapter as a “section 77 undertaking”) from the
National Health Service Commissioning Board or a clinical commissioning
group to take such action of a kind mentioned in subsection (2) as is specified
in the undertaking within such period as is so specified.
(2)
The specified action must be—
35
(a)
action of a description given in paragraphs (a) to (e) of section 76(6), or
(b)
action of such a description as may be prescribed.
(3)
Where Monitor accepts a section 77 undertaking then, unless the Board, or (as
the case may be) the clinical commissioning group from whom the
undertaking is accepted, has failed to comply with the undertaking or any part
40
of it, Monitor may not—
(a)
continue to carry out the investigation in question,
(b)
make a declaration by virtue of subsection (3) of section 76 in relation
to the arrangement in question, or
(c)
give a direction by virtue of subsection (6) of that section in relation to
45
the failure in question.

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Part 3 — Regulation of health and adult social care services
Chapter 2 — Competition
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(4)
Where the Board, or (as the case may be) the clinical commissioning group
from whom Monitor has accepted a section 77 undertaking, has failed to
comply fully with the undertaking but has complied with part of it, Monitor
must take the partial compliance into account in deciding whether to do
something mentioned in paragraphs (a) to (c) of subsection (3).
5
(5)
Schedule 9 (which makes further provision about section 77 undertakings) has
effect.
78
Guidance
(1)
Monitor must publish guidance about—
(a)
compliance with requirements imposed by regulations under section
10
75;
(b)
how it intends to exercise powers conferred on it by regulations under
that section.
(2)
Before publishing guidance under subsection (1)(a) or (b), Monitor must
consult—
15
(a)
the National Health Service Commissioning Board, and
(b)
such other persons as Monitor considers appropriate.
(3)
Before publishing guidance under subsection (1)(a) or (b), Monitor must obtain
the approval of the Secretary of State.
(4)
Monitor may revise guidance under this section and, if it does so, must publish
20
the guidance as revised.
(5)
Before publishing guidance revised under subsection (4), Monitor must
consult the persons mentioned in subsection (2).
79
Mergers involving NHS foundation trusts
(1)
For the purposes of Part 3 of the Enterprise Act 2002 (completed and
25
anticipated mergers), each of the following cases is to be treated as being (in so
far as it would not otherwise be) a case in which two or more enterprises cease
to be distinct enterprises.
(2)
The first case is where the activities of two or more NHS foundation trusts
cease to be distinct activities.
30
(3)
The second case is where the activities of one or more NHS foundation trusts
and the activities of one or more businesses cease to be distinct activities.
(4)
Where the Office of Fair Trading decides to carry out an investigation under
Part 3 of the Enterprise Act 2002 of a matter involving an NHS foundation
trust, it must as soon as reasonably practicable notify Monitor.
35
(5)
As soon as reasonably practicable after receiving a notification under
subsection (4), Monitor must provide the Office of Fair Trading with advice
on—
(a)
the effect of the matter under investigation on benefits (in the form of
those within section 30(1)(a) of the Enterprise Act 2002 (relevant
40
customer benefits)) for people who use health care services provided
for the purposes of the NHS, and
(b)
such other matters relating to the matter under investigation as
Monitor considers appropriate.

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Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
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(6)
In subsections (2) and (3), a reference to the activities of an NHS foundation
trust or a business includes a reference to part of its activities.
(7)
In this section, “enterprise” and “business” each have the same meaning as in
Part 3 of the Enterprise Act 2002.
80
Co-operation with the Office of Fair Trading
5
(1)
Monitor and the Office of Fair Trading must co-operate with each other in the
exercise of their respective functions under the Competition Act 1998 and the
Enterprise Act 2002.
(2)
In particular each must give the other—
(a)
such information in its possession as the other may require to enable it
10
to exercise those functions,
(b)
such other information in its possession as it considers would assist the
other in exercising those functions, and
(c)
such other assistance as the other may require to assist it in exercising
those functions.
15
Chapter 3
Licensing
Licensing requirement
81
Requirement for health service providers to be licensed
(1)
Any person who provides a health care service for the purposes of the NHS
20
must hold a licence under this Chapter.
(2)
Regulations may make provision for the purposes of this Chapter for
determining, in relation to a service provided by two or more persons acting in
different capacities, which of those persons is to be regarded as the person who
provides the service.
25
82
Deemed breach of requirement to be licensed
(1)
This section applies where a licence holder—
(a)
in providing a health care service for the purposes of the NHS, carries
on a regulated activity (within the meaning of Part 1 of the Health and
Social Care Act 2008), but
30
(b)
is not registered under Chapter 2 of Part 1 of that Act in respect of the
carrying on of that activity.
(2)
The licence holder is to be regarded as providing the service in breach of the
requirement under section 81 to hold a licence.
83
Exemption regulations
35
(1)
Regulations (referred to in this section and section 84 as “exemption
regulations”) may provide for the grant of exemptions from the requirement
under section 81 in respect of—
(a)
a prescribed person or persons of a prescribed description;

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Chapter 3 — Licensing
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(b)
the provision of a prescribed health care service or a health care service
of a prescribed description.
(2)
Exemption regulations may grant an exemption—
(a)
either generally or to the extent prescribed;
(b)
either unconditionally or subject to prescribed conditions;
5
(c)
indefinitely, for a prescribed period or for a period determined by or
under the exemption.
(3)
Conditions subject to which an exemption may be granted include, in
particular, conditions requiring any person providing a service pursuant to the
exemption—
10
(a)
to comply with any direction given by Monitor about such matters as
are specified in the exemption or are of a description so specified,
(b)
except to the extent that Monitor otherwise approves, to do, or not to
do, such things as are specified in the exemption or are of a description
so specified (or to do, or not to do, such things in a specified manner),
15
and
(c)
to refer for determination by Monitor such questions arising under the
exemption as are specified in the exemption or are of a description so
specified.
(4)
Before making exemption regulations the Secretary of State must give
20
notice to—
(a)
Monitor,
(b)
the National Health Service Commissioning Board, and
(c)
the Care Quality Commission and its Healthwatch England committee.
(5)
The Secretary of State must also publish a notice under subsection (4).
25
(6)
A notice under subsection (4) must—
(a)
state that the Secretary of State proposes to make exemption
regulations and set out their proposed effect,
(b)
set out the Secretary of State’s reasons for the proposal, and
(c)
specify the period (“the notice period”) within which representations
30
with respect to the proposal may be made.
(7)
The notice period must be not less than 28 days beginning with the day after
that on which the notice is published under subsection (5).
(8)
Where an exemption is granted the Secretary of State—
(a)
if the exemption is granted to a prescribed person, must give notice of
35
it to that person, and
(b)
must publish the exemption.
84
Exemption regulations: supplementary
(1)
Regulations may revoke exemption regulations by which an exemption was
granted to a person, or amend such regulations by which more than one
40
exemption was so granted so as to withdraw any of the exemptions—
(a)
at the person’s request,
(b)
in accordance with any provision of the exemption regulations by
which the exemption was granted, or