Health and Social Care Bill (HL Bill 132)

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) 5is economic, efficient and effective, and

(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
10behaviour in the provision of health care services for the purposes of the NHS
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) 15improve the quality of those services (including the 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 services, or

(c) reduce inequalities between persons with respect to the outcomes
20achieved for them by the provision of those services.

(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) 25improve the quality of those health care services (including the
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) 30reduce inequalities between persons with respect to the outcomes
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
35under section 13N of the National Health Service Act 2006, and

(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
40Monitor makes about the exercise of its functions (other than decisions it makes
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) 45the prevention, diagnosis or treatment of illness (within the meaning of
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
5in the proportion of health care services provided for the purposes of the NHS
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) 10some other aspect of their status.

(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
  15social services functions of local authorities (within the meaning of the
  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) 20the objectives specified in the mandate published under section 13A of
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) 25In exercising its functions, Monitor must have regard to guidance under
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) 30may revise guidance under subsection (1), and

(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) 35“Anti-competitive behaviour” means behaviour which would (or would be
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
40relating to physical or mental health, with a reference in this Part to health care
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).

(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) 5A reference to the provision of health care services for the purposes of the NHS
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 10Power to give Monitor functions relating to adult social care services

(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) 15“Adult social care”—

(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) 20does not include anything provided by an establishment or agency for
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) 25In exercising its functions, Monitor must have regard, in particular, to the need
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) 30the desirability of securing continuous improvement in the quality of
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
35purposes operates fairly,

(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
40the NHS to make the best use of resources when doing so,

(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
45persons who provide health care services for the purposes of the NHS,

(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
5section 13E of the National Health Service Act 2006 (improvement of
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
10(2)(h), the Secretary of State must lay a copy of the published guidance before
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
15and lay it before Parliament.

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) 20Monitor must act so as to secure that there is not, and could not reasonably be
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
25conditions on NHS foundation trusts during transitional period) or
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
30exercising—

(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
35unusual importance, it must publish a statement setting out—

(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) 40a matter likely to have a significant impact on persons who provide
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
45England (or in a particular part of England);

(d) a major change in the activities Monitor carries on;

(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) 5The duty under subsection (4) does not apply in so far as Monitor is subject to
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) 10a summary of the manner in which, in that financial year, Monitor has
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 15Duty to review regulatory burdens

(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) 20In keeping the exercise of its functions under review, Monitor must have
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) 25Monitor must from time to time publish a statement setting out—

(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) 30where a burden relating to the exercise of the function which has
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) 35must be published as soon as practicable after the commencement of
this section, and

(b) must relate to the period of 12 months beginning with the date of
publication.

(6) A subsequent statement—

(a) 40must be published during the period to which the previous statement
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.

(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 5Duty to carry out impact assessments

(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) 10to have a significant impact on people who use health care services
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) 15to involve a major change in the standard conditions of licences under
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) 20the exercise of functions under or by virtue of Chapter 2.

(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
25implementation, or

(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) 30would be secured by implementation of the proposal, but

(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
35relate, Monitor must have regard to such general guidance on carrying out
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
40with the day after that on which the assessment is published under subsection
(4).

(8) Monitor may not implement the proposal unless the consultation period has
ended.

(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) 5may be met contemporaneously with it.

(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
10proposals to which assessments carried out during that year or a
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
15connection with any of its other functions.

(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 20Failure to perform functions

(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,
25and in such manner and within such period, as the direction specifies.

(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) 30perform the functions to which the direction relates, or

(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) 35For the purposes of this section—

(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
40interests of the health service in England or (as the case may be) with
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.

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.

(2) 5The 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
10section 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
20including 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.

(2) 25The 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
304 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.

(5) 35Neither 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
40misleading 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.

74 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) 5Subject to subsection (3), sections 62 and 66 (general duties of Monitor) do not
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
10imposed by section 62 or 66 if it is a matter to which the Office of Fair Trading
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) 15Monitor.”

(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) 20Monitor.”

(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) 25in relation to Monitor, section 73 of the Health and Social
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) 30In section 168 of that Act (regulated markets)—

(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) 35in subsection (4) (meaning of “relevant statutory functions”), after
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) 40in subsection (5) (meaning of “sectoral regulator”), after paragraph (i)
insert—

“(ia) Monitor;”.

75 Requirements as to procurement, patient choice and competition

(1) Regulations may impose requirements on the National Health Service
45Commissioning Board and clinical commissioning groups for the purpose of

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
5to treatment or other health care services provided for the purposes of
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
10arrangement for the provision of goods and services only if the value of the
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) 15competitive tendering for the provision of services;

(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
20description.

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
25comply with a requirement imposed by the regulations;

(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
30provide it with such information as Monitor may specify for the
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
35paragraph (c).

(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
40arrangement for the provision of health care services for the purposes of the
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) 45the National Health Service Commissioning Board or a clinical
commissioning group has failed to comply with a requirement of
regulations under section 75, and