Health and Social Care Bill (HL Bill 132)

and a reference to the relevant commissioner in relation to a joint quality
standard is a reference to both the Secretary of State and the Board.

(11) In this Part—

• “NHS services” means services the provision of which is arranged by the
  5Board or a clinical commissioning group under the National Health
  Service Act 2006 (including pursuant to arrangements made under
  section 7A of that Act);

• “public health services” means services provided pursuant to the
  functions of—

  (a)

  10the Secretary of State under section 2A or 2B of, or paragraph
  7C, 8 or 12 of Schedule 1 to, that Act, or

  (b)

  a local authority under section 2B or 111 of, or paragraphs 1 to
  7B or 13 of Schedule 1 to, that Act.

235 Supply of quality standards to other persons

(1) 15Regulations may confer powers on NICE in relation to the supply by NICE of
quality standards to—

(a) devolved authorities;

(b) other persons (whether or not in the United Kingdom).

(2) The regulations may in particular—

(a) 20confer power on NICE to make such adjustments as NICE considers
appropriate to a quality standard for the purposes of supplying it as
mentioned in subsection (1), and

(b) provide for the imposition by NICE of charges for or in connection with
the supply of a quality standard as so mentioned.

(3) 25Provision made under subsection (2)(b) may include provision for charges to
be calculated on the basis NICE considers to be the appropriate commercial
basis.

(4) In this section “devolved authority” means—

(a) the Scottish Ministers,

(b) 30the Welsh Ministers, and

(c) the Department of Health, Social Services and Public Safety in
Northern Ireland.

236 Advice or guidance to the Secretary of State or the Board

(1) NICE must give advice or guidance to the Secretary of State or the Board on
35any quality matter referred to it by the Secretary of State or (as the case may be)
the Board.

(2) “Quality matter”—

(a) in relation to the Secretary of State, means any matter in relation to
which the Secretary of State has the power to direct NICE to prepare a
40quality standard, and

(b) in relation to the Board, means any matter in relation to which the
Board has the power to direct NICE to prepare a quality standard.

Functions: advice, guidance etc.

237 Advice, guidance, information and recommendations

(1) Regulations may confer functions on NICE in relation to the giving of advice
or guidance, provision of information or making of recommendations about
5any matter concerning or connected with the provision of—

(a) NHS services,

(b) public health services, or

(c) social care in England.

(2) The regulations may provide that a function conferred under subsection
10(1)(a)—

(a) is only exercisable on the direction of the Secretary of State or the Board;

(b) is subject to directions given by the Secretary of State or (as the case
may be) the Board about NICE’s exercise of the function.

(3) The regulations may provide that a function conferred under subsection (1)(b)
15or (c)—

(a) is only exercisable on the direction of the Secretary of State;

(b) is subject to directions given by the Secretary of State about NICE’s
exercise of the function.

(4) Provision made under subsection (2)(b) or (3)(b) must not permit a direction to
20be given about the substance of advice, guidance or recommendations of
NICE.

(5) The regulations may make provision about—

(a) the persons who may request or require that advice, guidance,
information or recommendations be given, provided or (as the case
25may be) made by NICE,

(b) the publication or other dissemination of the advice, guidance,
information or recommendations (whether by NICE, the Secretary of
State or the Board), and

(c) the imposition by NICE of charges for or in connection with the giving
30of advice or guidance, provision of information or making of
recommendations.

(6) Provision made under subsection (5)(c) may include provision for charges to
be calculated on the basis NICE considers to be the appropriate commercial
basis.

(7) 35The regulations must make provision about—

(a) the establishment by NICE of procedures for the giving of advice or
guidance, provision of information or making of recommendations
under the regulations, and

(b) consultation by NICE in establishing the procedures.

(8) 40The regulations may make provision requiring specified health or social care
bodies, or health or social care bodies of a specified description, to—

(a) have regard to specified advice or guidance, or advice or guidance of a
specified description, given by NICE pursuant to the regulations;

(b) comply with specified recommendations, or recommendations of a
45specified description, made by NICE pursuant to the regulations.

(9) Provision made under subsection (8) may require a specified body, or bodies
of a specified description, to have regard to advice or guidance or to comply
with recommendations—

(a) generally in the exercise of functions, or

(b) 5in the exercise of specified functions or functions of a specified
description.

(10) But provision made under subsection (8) may impose a requirement on a local
authority, or a description of local authorities, only if the requirement relates
to—

(a) 10the exercise by an authority of any of its functions under section 2B or
111 of, or paragraphs 1 to 7B or 13 of Schedule 1 to, the National Health
Service Act 2006;

(b) the exercise by an authority of any of its functions by virtue of section
6C(1) or (3) of that Act;

(c) 15anything done by an authority in pursuance of arrangements under
section 7A of that Act.

(11) In this section—

• “health or social care body” means any public body exercising functions
  in connection with the provision of health services or of social care in
  20England;

• “local authority” means—

  (a)

  a county council in England;

  (b)

  a district council in England, other than a council for a district
  in a county for which there is a county council;

  (c)

  25a London borough council;

  (d)

  the Council of the Isles of Scilly;

  (e)

  the Common Council of the City of London;

• ‘“public body” means a body or other person whose functions—

  (a)

  are of a public nature, or

  (b)

  30include functions of that nature,

  but, in the latter case, the body or person is a public body to the extent
  only of those functions;

• “specified” means specified in the regulations.

238 NICE recommendations: appeals

(1) 35Regulations under section 237 may make provision about appeals against
recommendations made by NICE pursuant to the regulations.

(2) The regulations may, in particular, include provision about—

(a) the types of recommendations in relation to which an appeal may be
brought,

(b) 40the persons who may bring an appeal,

(c) the grounds on which an appeal may be brought, and

(d) the persons by whom an appeal is to be heard.

239 Training

(1) Regulations may confer functions on NICE in relation to providing, or
facilitating the provision of, training in connection with any matter concerning
or connected with the provision of—

(a) 5NHS services,

(b) public health services, or

(c) social care in England.

(2) The regulations may provide that a function conferred under subsection
(1)(a)—

(a) 10is only exercisable on the direction of the Board;

(b) is subject to directions given by the Board about NICE’s exercise of the
function.

(3) The regulations may provide that a function conferred under subsection (1)(b)
or (c)—

(a) 15is only exercisable on the direction of the Secretary of State;

(b) is subject to directions given by the Secretary of State about NICE’s
exercise of the function.

(4) The regulations may provide for the imposition by NICE of charges for or in
connection with the provision, or the facilitation of the provision, of training.

(5) 20Provision made under subsection (4) may include provision for charges to be
calculated on the basis NICE considers to be the appropriate commercial basis.

240 Advisory services

(1) Regulations may confer functions on NICE in relation to the giving of advice
to persons (whether or not in the United Kingdom) in relation to any matter
25concerning or connected with—

(a) the provision of health care,

(b) the protection or improvement of public health, or

(c) the provision of social care.

(2) The regulations may make provision about the imposition of charges by NICE
30for or in connection with the giving of such advice.

(3) Provision made under subsection (2) may include provision for charges to be
calculated on the basis NICE considers to be the appropriate commercial basis.

(4) In this Part “health care” includes all forms of health care provided for
individuals whether relating to physical or mental health and also includes
35procedures that are similar to forms of medical or surgical care but are not
provided in connection with a medical condition.

241 Commissioning guidance

(1) The Board may direct NICE to exercise any of the Board’s functions in relation
to the preparation of the guidance required to be published by the Board under
40section 14Z8 of the National Health Service Act 2006 (the “commissioning
guidance”).

(2) A direction under subsection (1) may direct NICE to exercise the functions in
such manner and within such period as may be specified in the direction.

(3) If requested to do so, NICE must—

(a) provide the Board with information or advice on such matters
connected to the Board’s functions in respect of the commissioning
guidance as may be specified in the request, and

(b) 5disseminate the commissioning guidance to such persons and in such
manner as may be specified in the request.

Functions: other

242 NICE’s charter

(1) Regulations may make provision requiring NICE to publish a document
10explaining the functions of NICE and how NICE intends to exercise them
(referred to in this section as “the charter”).

(2) The regulations may, in particular, make provision about—

(a) the information to be provided in the charter,

(b) the timing of preparation of the charter,

(c) 15review and revision by NICE of the charter, and

(d) the manner in which the charter must or may be published.

243 Additional functions

(1) NICE may do any of the following—

(a) acquire, produce, manufacture and supply goods,

(b) 20acquire land by agreement and manage and deal with land,

(c) supply accommodation to any person,

(d) supply services to any person and provide new services,

(e) provide instruction for any person, and

(f) develop and exploit ideas and exploit intellectual property.

(2) 25But NICE may exercise a power under subsection (1) only—

(a) if doing so is connected with the provision of health care or social care,
and

(b) to the extent that its exercise does not to any significant extent interfere
with the performance by NICE of any function it has under or by virtue
30of any other provision of this Part.

(3) NICE may—

(a) charge for anything it does in the exercise of a power under
subsection (1), and

(b) calculate any such charge on the basis that it considers to be the
35appropriate commercial basis.

244 Arrangements with other bodies

(1) NICE may arrange with any person or body to provide, or assist in providing,
any service which NICE is required or authorised to provide by virtue of this
Part.

(2) 40The power under this section may be exercised on such terms as may be
agreed, including terms as to the making of payments by or to NICE.

245 Failure by NICE to discharge any of its functions

(1) The Secretary of State may give a direction to NICE if the Secretary of State
considers that—

(a) NICE—

(i) 5is failing or has failed to discharge any of its functions, or

(ii) is failing or has failed properly to discharge any of its functions,
and

(b) the failure is significant.

(2) A direction under subsection (1) may direct NICE to discharge such of those
10functions, and in such manner and within such period or periods, as may be
specified in the direction.

(3) If NICE fails to comply with a direction under subsection (1), the Secretary of
State may—

(a) discharge the functions to which it relates, or

(b) 15make arrangements for any other person to discharge them on the
Secretary of State’s behalf.

(4) Where the Secretary of State exercises a power under subsection (1) or (3), the
Secretary of State must publish reasons for doing so.

(5) For the purposes of this section, a failure to discharge a function properly
20includes a failure to discharge 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 what otherwise appears to the Secretary of State to be the purpose for
which it is conferred.

246 Protection from personal liability

(1) 25Section 265 of the Public Health Act 1875 (which relates to the protection of
members and officers of certain authorities from personal liability) has effect as
if there were included in the authorities referred to in that section a reference
to NICE.

(2) In its application to NICE as provided for by subsection (1), section 265 of that
30Act has effect as if any reference in that section to the Public Health Act 1875
were a reference to this Act.

Supplementary

247 Interpretation of this Part

In this Part—

• 35“the Board” means the National Health Service Commissioning Board;

• “health care” has the meaning given by section 240(4);

• “the health service” has the same meaning as in the National Health
  Service Act 2006 (see section 275(1) of that Act);

• “health services” has the meaning given by section 233(3);

• 40“NHS services” has the meaning given by section 234(11);

• “public health services” has the meaning given by section 234(11);

• “quality standard” has the meaning given by section 234(2);

• “social care” has the meaning given by section 233(3).

248 Dissolution of predecessor body

The Special Health Authority known as the National Institute for Health and
Clinical Excellence is abolished.

249 Consequential and transitional provision

(1) 5Schedule 17 (which contains consequential provision) has effect.

(2) A statement of standards prepared and published by the Institute before
commencement is to be treated on and after commencement as if it were a
quality standard—

(a) prepared and published by NICE in accordance with section 234,

(b) 10endorsed under subsection (5) of that section, and

(c) in respect of which the transitional commissioner is the relevant
commissioner for the purposes of that section.

(3) Subsections (4) to (6) apply to a case where before commencement—

(a) the Secretary of State has referred a matter to the Institute for the
15purpose of preparing and publishing a statement of standards, but

(b) the Institute has not published the statement.

(4) The referral by the Secretary of State to the Institute of the matter is to be
treated on and after commencement as if it were a direction given to NICE by
the transitional commissioner for the preparation of a quality standard in
20relation to that matter under section 234(1); and the transitional commissioner
is to be treated as the relevant commissioner for the purposes of that section.

(5) Anything done by the Institute before commencement in relation to the matter
is to be treated on and after commencement as having been done by NICE in
pursuance of the direction.

(6) 25Consultation with any person undertaken by the Institute before
commencement in relation to the matter is to be treated on and after
commencement as if it were consultation by NICE under section 234(3) in
relation to the preparation of the quality standard.

(7) A procedure established by the Institute before commencement for the
30preparation of statements of standards is to be treated on and after
commencement as if it were a procedure established by NICE in accordance
with section 234(7) for the preparation of quality standards.

(8) For the purposes of this section “the transitional commissioner” is the Secretary
of State; but the Secretary of State, after consulting the Board, may direct that
35in relation to a particular statement of standards or matter the transitional
commissioner is—

(a) the Board, or

(b) both the Secretary of State and the Board.

(9) In this section—

• 40“commencement” means the commencement of section 234;

• “the Institute” means the Special Health Authority known as the National
  Institute for Health and Clinical Excellence;

• “statement of standards” means a document containing advice to the
  Secretary of State in relation to the quality of the provision of health

  Health and Social Care BillPage 247

  care prepared and published by the Institute pursuant to the directions
  given to the Institute by the Secretary of State on 27 July 2009.

Part 9 Health and adult social care services: information

CHAPTER 1 5Information standards

250 Powers to publish information standards

(1) The Secretary of State or the National Health Service Commissioning Board
(referred to in this Chapter as “the Board”) may prepare and publish an
information standard.

(2) 10For the purposes of this Part “an information standard” is a document
containing standards in relation to the processing of information.

(3) The Secretary of State may exercise the power under subsection (1) only in
relation to information concerning, or connected with, the provision of health
services or of adult social care in England.

(4) 15The Board may exercise the power under subsection (1) only in relation to
information concerning, or connected with, the provision of NHS services.

(5) An information standard must include guidance about the implementation of
the standard.

(6) The following must have regard to an information standard published under
20this section—

(a) the Secretary of State;

(b) the Board;

(c) any public body which exercises functions in connection with the
provision of health services or of adult social care in England;

(d) 25any person (other than a public body) who provides health services, or
adult social care in England, pursuant to arrangements made with a
public body exercising functions in connection with the provision of
such services or care.

(7) In this section—

• 30“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
  35care or other assistance, but

  (b)

  does 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;

• 40“health services” means services which must or may be provided as part
  of the health service in England; and for that purpose “the health
  service” has the same meaning as in the National Health Service Act
  2006 (see section 275(1) of that Act);

Health and Social Care BillPage 248

• “NHS services” means services the provision of which is arranged by the
  Board or a clinical commissioning group under the National Health
  Service Act 2006 (including pursuant to arrangements made under
  section 7A of that Act);

• 5“processing” has the same meaning as in the Data Protection Act 1998 (see
  section 1 of that Act);

• “public body” means a body or other person whose functions—

  (a)

  are of a public nature, or

  (b)

  include functions of that nature,

  10but in the latter case, the body or person is a public body to the extent
  only of those functions.

251 Information standards: supplementary

(1) Before publishing an information standard, the Secretary of State or the Board
must consult such persons as the Secretary of State or (as the case may be) the
15Board considers appropriate.

(2) For the purposes of section 250 the Secretary of State or the Board may adopt
an information standard prepared or published by another person.

CHAPTER 2 The Health and Social Care Information Centre

Establishment and general duties

252 20The Health and Social Care Information Centre

(1) There is to be a body corporate known as the Health and Social Care
Information Centre (referred to in this Chapter as “the Information Centre”).

(2) Schedule 18 (which makes further provision about the Information Centre) has
effect.

253 25General duties

(1) In exercising its functions the Information Centre must have regard to—

(a) the information standards published by the Secretary of State or the
Board under section 250,

(b) such guidance issued by the Secretary of State as the Secretary of State
30may require,

(c) such guidance issued by the Board as the Board may require, and

(d) the need to promote the effective, efficient and economic use of
resources in the provision of health services and of adult social care in
England.

(2) 35The Information Centre must—

(a) seek to minimise the burdens it imposes on others, and

(b) exercise its functions effectively, efficiently and economically.

(3) In this Chapter—

• “adult social care”—

  Health and Social Care BillPage 249

  (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
  5care or other assistance, but

  (b)

  does 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;

  10“health services” means services which must or may be provided as
  part of the health service in England.

Functions: information systems

254 Powers to direct Information Centre to establish information systems

(1) The Secretary of State or the Board may direct the Information Centre to
15establish and operate a system for the collection or analysis of information of a
description specified in the direction.

(2) A direction may be given under subsection (1) by the Secretary of State only
if—

(a) the Secretary of State considers that the information which could be
20obtained by complying with the direction is information which it is
necessary or expedient for the Secretary of State to have in relation to
the exercise by the Secretary of State of the Secretary of State’s functions
in connection with the provision of health services or of adult social
care in England, or

(b) 25the Secretary of State otherwise considers it to be in the interests of the
health service in England or of the recipients or providers of adult
social care in England for the direction to be given.

(3) A direction may be given under subsection (1) by the Board only if the Board
considers that the information which could be obtained by complying with the
30direction is information which it is necessary or expedient for the Board to have
in relation to its exercise of functions in connection with the provision of NHS
services.

(4) In subsection (3) “NHS services” means services the provision of which is
arranged by the Board or a clinical commissioning group under the National
35Health Service Act 2006 (including pursuant to arrangements made under
section 7A of that Act).

(5) Before giving a direction under subsection (1) the Secretary of State or (as the
case may be) the Board must consult the Information Centre.

(6) A function conferred by a direction given by the Secretary of State or the Board
40under subsection (1) is subject to directions given by the Secretary of State or
(as the case may be) the Board about the Information Centre’s exercise of the
function.

(7) The Information Centre may charge the Board a reasonable fee in respect of the
cost of complying with a direction given by the Board under subsection (1).