Health and Social Care Bill (HL Bill 132)

(6) A reference in this section to regulating an activity includes a reference to—

(a) authorising the carrying on of the activity, imposing restrictions on the
carrying on of the activity, and exercising functions in relation to such
authorisations or restrictions;

(b) 5enforcing the performance of an obligation imposed (whether or not by
provision made by or under an enactment) with respect to the carrying
on of the activity;

(c) issuing guidance on the carrying on of the activity, the authorisation of
the activity, restrictions on the activity, or the performance of obligation
10imposed with respect to the carrying on of the activity.

(7) For the purposes of this section and section 291, the functions of a Special
Health Authority include such functions as it is directed to exercise under
section 7 of the National Health Service Act 2006 (directions by Secretary of
State).

(8) 15References in this section and section 291 to functions are references to
functions so far as exercisable in relation to England.

291 Breaches of duties to co-operate

(1) If the Secretary of State is of the opinion that bodies subject to a relevant co-
operation duty have breached or are breaching the duty, or are at significant
20risk of breaching the duty, the Secretary of State may give a written notice of
the Secretary of State’s opinion to each body.

(2) The relevant co-operation duties are—

(a) the duty under section 288 (co-operation by Monitor with the Care
Quality Commission),

(b) 25the duties under section 290(1) and (2),

(c) the duty under section 70 of the Health and Social Care Act 2008 (co-
operation by the Care Quality Commission with Monitor),

(d) any duties imposed by an enactment on relevant bodies to co-operate
with each other in the exercise of their respective functions.

(3) 30The Secretary of State must publish each notice given under subsection (1) in
such form as the Secretary of State considers appropriate.

(4) Subsection (5) applies if, having given a notice under subsection (1), the
Secretary of State is satisfied that—

(a) the bodies concerned have breached or are continuing to breach the
35duty or, the risk of a breach having materialised, are breaching the
duty, and

(b) the breach is having a detrimental effect on the performance of the
health service (or, where the effect of the breach on the performance of
the health service is both beneficial and detrimental, its overall effect is
40detrimental).

(5) The Secretary of State may by order prohibit each body from exercising
specified functions, or from exercising specified functions in a specified
manner, unless the other body concerned agrees in writing that the body may
do so.

(6) 45The power to make an order under subsection (5)—

(a) may be exercised so as to specify different functions in relation to each
body, but

(b) may not be exercised so as to prevent a body from complying with a
requirement imposed by or under an enactment or by a court or
tribunal.

(7) In default of agreement as to the exercise of a function specified in an order
5under subsection (5), a body may exercise the function in accordance with
provision determined by arbitration.

(8) An order under subsection (5) must specify the period for which a prohibition
imposed by it has effect; and the period specified for that purpose may not
exceed one year beginning with the day on which the order comes into force.

(9) 10But if the Secretary of State is satisfied that the breach is continuing to have a
detrimental effect (or an effect that overall is detrimental) on the performance
of the health service, the Secretary of State may by order extend by one year the
period for which the prohibition for the time being has effect.

(10) In this section, “the health service” means the comprehensive health service
15continued under section 1(1) of the National Health Service Act 2006.

The Care Quality Commission

292 Requirement for Secretary of State to approve remuneration policy etc.

In paragraph 5 of Schedule 1 to the Health and Social Care Act 2008 (employees
of the Care Quality Commission), at the end insert—

“(5) 20Before making a determination as to remuneration, pensions,
allowances or gratuities for the purposes of sub-paragraph (3) or (4),
the Commission must obtain the approval of the Secretary of State to
its policy on that matter.”

293 Conduct of reviews etc. by Care Quality Commission

(1) 25Part 1 of the Health and Social Care Act 2008 (the Care Quality Commission) is
amended as follows.

(2) In section 48 (special reviews and investigations)—

(a) in subsection (1) after “may” insert “, with the approval of the Secretary
of State,”, and

(b) 30after subsection (1) insert—

“(1A) The Commission may conduct an investigation under this
section without the approval of the Secretary of State where the
Commission considers there to be a risk to the health, safety or
welfare of persons receiving health or social care.”

(3) 35In section 54 (studies as to economy, efficiency etc.), in each of subsections (1)
and (3) after “may” insert “, with the approval of the Secretary of State,”.

(4) In section 57 (reviews of data, studies and research), in subsection (1) after
“may” insert “, with the approval of the Secretary of State,”.

294 Failure to discharge functions

(1) 40In section 82 of the Health and Social Care Act 2008 (failure by Commission to

discharge functions), in subsection (1), at the end insert “,

and that the failure is significant.”

(2) After subsection (2) of that section insert—

“(2A) But the Secretary of State may not give a direction under subsection (1)
5in relation to the performance of functions in a particular case.”

(3) After subsection (3) of that section insert—

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

(5) For the purposes of this section a failure to discharge a function
10properly includes 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; and “the
health service” has the same meaning as in the National Health Service
15Act 2006.”

(4) In section 161 of that Act (orders, regulations and directions: general
provisions), in subsection (3), before “any power of the Secretary of State to
give directions” insert “(subject to section 82(2A))”.

(5) In section 165 of that Act (directions), at the beginning of subsection (2) insert
20“Subject to subsection (3),”.

(6) After that subsection insert—

“(3) A direction under section 82 must be given by regulations or by an
instrument in writing.”

Arrangements with devolved authorities etc.

295 25Arrangements between the Board and Northern Ireland Ministers

(1) The National Health Service Commissioning Board may make arrangements
with a Northern Ireland Minister for the Board to commission services for the
purposes of the Northern Ireland health service.

(2) Arrangements under this section may be on such terms and conditions as may
30be agreed between the parties to the arrangements.

(3) Those terms and conditions may include provision with respect to the making
of payments to the National Health Service Commissioning Board in respect of
the cost to it of giving effect to the arrangements.

(4) In this section—

• 35“commission” means arrange for the provision of,

• “Northern Ireland health service” means any of the health services under
  any enactment which extends to Northern Ireland and which
  corresponds to section 1(1) of the National Health Service Act 2006
  (and, for that purpose, “enactment” includes subordinate legislation
  40(within the meaning of the Interpretation Act 1978) and Northern
  Ireland legislation), and

• “Northern Ireland Minister” includes the First Minister, the deputy First
  Minister and a Northern Ireland department.

296 Arrangements between the Board and Scottish Ministers etc.

(1) The National Health Service Commissioning Board may make arrangements
with the Scottish Ministers or a Scottish health body for the Board to
commission services for the purposes of the Scottish health service.

(2) 5Arrangements under this section may be on such terms and conditions as may
be agreed between the parties to the arrangements.

(3) Those terms and conditions may include provision with respect to the making
of payments to the National Health Service Commissioning Board in respect of
the cost to it of giving effect to the arrangements.

(4) 10In this section—

• “commission” means arrange for the provision of, and

• “Scottish health body” means—

  (a)

  a Health Board or Special Health Board constituted under
  section 2 of the National Health Service (Scotland) Act 1978, and

  (b)

  15the Common Services Agency for the Scottish Health Service
  constituted by section 10 of that Act.

297 Relationships between the health services

Schedule 21 (which amends enactments relating to the relationships between
the health services in the United Kingdom) has effect.

298 20Advice or assistance to public authorities in the Isle of Man or Channel
Islands

(1) The National Health Service Commissioning Board or a clinical commissioning
group may provide advice or assistance to any public authority in the Isle of
Man or Channel Islands.

(2) 25Advice or assistance under subsection (1) may be provided on such terms,
including terms as to payment, as the Board or (as the case may be) the clinical
commissioning group considers appropriate.

Supervised community treatment

299 Certificate of consent of community patients to treatment

(1) 30Part 4A of the Mental Health Act 1983 (treatment of community patients not
recalled to hospital) is amended as follows.

(2) In section 64C (treatment of adult community patients), after subsection (4)
insert—

“(4A) Where there is authority to give treatment by virtue of subsection (2)(a),
35the certificate requirement is also met in respect of the treatment if the
approved clinician in charge of the treatment has certified in writing
that the patient has capacity to consent to the treatment and has
consented to it.

(4B) But, if the patient has not attained the age of 18, subsection (4A) does
40not apply to section 58A type treatment.”

(3) In section 64E (treatment of child community patients), in subsection (7)—

(a) for “(3) to (9)” substitute “(3) to (4A) and (5) to (9)”, and

(b) at the end insert “; and for the purpose of this subsection, subsection
(4A) of section 64C above has effect as if—

“(a) 5the references to treatment were references only to
section 58 type treatment,

(b) the reference to subsection (2)(a) of section 64C were a
reference to subsection (6)(a) of this section, and

(c) the reference to capacity to consent were a reference to
10competence to consent.”

(4) After section 64F insert—

“64FA Withdrawal of consent

(1) Where the consent of a patient to any treatment has been given as
mentioned in section 64C(2)(a) above for the purposes of section 64B or
1564E above, the patient may at any time before the completion of the
treatment withdraw his consent, and those sections shall then apply as
if the remainder of the treatment were a separate form of treatment.

(2) Subsection (3) below applies where—

(a) the consent of a patient to any treatment has been given as
20mentioned in section 64C(2)(a) above for the purposes of section
64B or 64E above; but

(b) before the completion of the treatment, the patient loses
capacity or (as the case may be) competence to consent to the
treatment.

(3) 25The patient shall be treated as having withdrawn his consent and
section 64B or (as the case may be) section 64E above shall then apply
as if the remainder of the treatment were a separate form of treatment.

(4) Without prejudice to the application of subsections (1) to (3) above to
any treatment given under the plan of treatment to which a patient has
30consented, a patient who has consented to such a plan may at any time
withdraw his consent to further treatment, or to further treatment of
any description, under the plan.

(5) This section shall not preclude the continuation of any treatment, or of
treatment under any plan, pending compliance with section 58, 58A,
3564B or 64E above if the approved clinician in charge of the treatment
considers that the discontinuance of the treatment, or of treatment
under the plan, would cause serious suffering to the patient.”

(5) In section 64H (certificates: supplementary provision)—

(a) in subsection (2), at the end insert “; and the regulations may make
40different provision for the different descriptions of Part 4A certificate”,
and

(b) in subsections (3), (4) and (5), after “Part 4A certificate” insert “that falls
within section 64C(4) above”.

(6) In section 17B of the Mental Health Act 1983 (conditions of community
45treatment order), in subsection (3)(b), after “Part 4A of this Act” insert “that
falls within section 64C(4) below”.

(7) In section 61 of that Act (review of treatment), in subsection (1), after “that
section)” insert “that falls within section 64C(4) below”.

(8) In section 62A of that Act (treatment on recall of community patient or
revocation of order), in subsection (5), after “applies” insert “and the Part 4A
5certificate falls within section 64C(4) below”.

(9) In subsection (6) of that section, after “58 or 58A above” insert “or 64B or 64E
below”.

(10) After that subsection insert—

“(6A) In a case where this section applies and the certificate requirement is no
10longer met for the purposes of section 64C(4A) below, the continuation
of any treatment, or of treatment under any plan, pending compliance
with section 58 or 58A above or 64B or 64E below shall not be precluded
if the approved clinician in charge of the treatment considers that the
discontinuance of the treatment, or of treatment under the plan, would
15cause serious suffering to the patient.”

Transfer schemes

300 Transfer schemes

(1) The Secretary of State may make a property transfer scheme or a staff transfer
scheme in connection with—

(a) 20the establishment or abolition of a body by this Act, or

(b) the modification of the functions of a body or other person by or under
this Act.

(2) A property transfer scheme is a scheme for the transfer from a body or other
person mentioned in the first column of the Table in Schedule 22 of any
25property, rights or liabilities, other than rights or liabilities under or in
connection with a contract of employment, to a body or other person
mentioned in the corresponding entry in the second column.

(3) A staff transfer scheme is a scheme for the transfer from a body or other person
mentioned in the first column of the Table in Schedule 23 of any rights or
30liabilities under or in connection with a contract of employment to a body or
other person mentioned in the corresponding entry in the second column.

(4) The Secretary of State may direct the Board or a qualifying company to exercise
the functions of the Secretary of State in relation to the making of a property
transfer scheme or a staff transfer scheme in connection with the abolition of—

(a) 35one or more Primary Care Trusts specified in the direction, or

(b) one or more Strategic Health Authorities so specified.

(5) Where the Secretary of State gives a direction under subsection (4), the
Secretary of State may give directions to the Board or (as the case may be) the
company about its exercise of the functions.

(6) 40For the purposes of this section and section 301—

(a) an individual who holds employment in the civil service is to be treated
as employed by virtue of a contract of employment, and

(b) the terms of the individual’s employment in the civil service are to be
regarded as constituting the terms of the contract of employment.

(7) In this section and sections 301 and 302 references to the transfer of property
include references to the grant of a lease.

(8) In this section and Schedules 22 and 23, “qualifying company” means—

(a) a company which is formed under section 223 of the National Health
5Service Act 2006 and wholly or partly owned by the Secretary of State
or the Board, or

(b) a subsidiary of a company which is formed under that section and
wholly owned by the Secretary of State.

(9) In section 301 and Schedules 22 and 23—

• 10“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)

  a London borough council;

  (d)

  15the Council of the Isles of Scilly;

  (e)

  the Common Council of the City of London;

• “public authority” means any body or other person which has functions
  conferred by or under an Act or by royal charter.

301 Transfer schemes: supplemental

(1) 20The things that may be transferred under a property transfer scheme or a staff
transfer scheme include—

(a) property, rights and liabilities that could not otherwise be transferred;

(b) property acquired, and rights and liabilities arising, after the making of
the scheme;

(c) 25criminal liabilities but only where the transfer is to a person mentioned
in subsection (2).

(2) Those persons are—

(a) the National Health Service Commissioning Board;

(b) a clinical commissioning group;

(c) 30a local authority;

(d) the Care Quality Commission;

(e) Monitor;

(f) the National Institute for Health and Care Excellence;

(g) the Health and Social Care Information Centre;

(h) 35the Health and Care Professions Council;

(i) a public authority other than a Minister of the Crown.

(3) A property transfer scheme or a staff transfer scheme may make
supplementary, incidental, transitional and consequential provision and may
in particular—

(a) 40create rights, or impose liabilities, in relation to property or rights
transferred;

(b) make provision about the continuing effect of things done by the
transferor in respect of anything transferred;

(c) make provision about the continuation of things (including legal
45proceedings) in the process of being done by, on behalf of or in relation
to the transferor in respect of anything transferred;

(d) make provision for references to the transferor in an instrument or
other document in respect of anything transferred to be treated as
references to the transferee.

(4) A property transfer scheme may make provision for the shared ownership or
5use of property.

(5) A staff transfer scheme may make provision which is the same or similar to the
TUPE regulations.

(6) A property transfer scheme or a staff transfer scheme may provide—

(a) for the scheme to be modified by agreement after it comes into effect,
10and

(b) for any such modifications to have effect from the date when the
original scheme comes into effect.

(7) Where a Primary Care Trust, a Strategic Health Authority or a Special Health
Authority is abolished by this Act, the Secretary of State must exercise the
15powers conferred by section 300 and this section so as to secure that all the
body’s liabilities (other than criminal liabilities) are dealt with.

(8) In this section, “TUPE regulations” means the Transfer of Undertakings
(Protection of Employment) Regulations 2006 (SI 2006/246SI 2006/246).

302 Subsequent property transfer schemes

(1) 20This section applies in relation to any property, rights or liabilities which are
transferred under a property transfer scheme under section 300(1) from a
Primary Care Trust, a Strategic Health Authority or the Secretary of State to a
Special Health Authority or a qualifying company.

(2) The Secretary of State may make a scheme for the transfer of any such property,
25rights or liabilities from the Special Health Authority or the qualifying
company to any body or other person mentioned in the second column of
Schedule 22.

(3) Subsections (1) to (4) and (6) of section 301 apply in relation to a scheme under
subsection (2) as they apply in relation to a property transfer scheme under
30section 300(1).

Part 12 Final provisions

303 Power to make consequential provision

(1) The Secretary of State may by order make provision in consequence of this Act.

(2) 35An order under this section may, in particular—

(a) amend, repeal, revoke or otherwise modify any enactment;

(b) include transitional, transitory or saving provision in connection with
the commencement of provision made by the order.

(3) Transitory provision by virtue of subsection (2)(b) may, in particular, modify
40the application of provision made by the order pending the commencement
of—

(a) another provision of the order,

(b) a provision of this Act,

(c) any other enactment.

(4) Before making an order under this section that contains provision which
would, if included in an Act of the Scottish Parliament, fall within the
5legislative competence of that Parliament, the Secretary of State must consult
the Scottish Ministers.

(5) The power conferred by this section is not restricted by any other provision of
this Act.

(6) In this section, “enactment” includes—

(a) 10an enactment contained in subordinate legislation (within the meaning
of the Interpretation Act 1978), and

(b) an enactment contained in, or in an instrument made under, an Act of
the Scottish Parliament, an Act or Measure of the National Assembly
for Wales or Northern Ireland legislation,

15and references to an enactment include a reference to an enactment passed or
made after the passing of this Act.

304 Regulations, orders and directions

(1) A power to make regulations under this Act is exercisable by the Secretary of
State.

(2) 20Regulations under this Act, and orders by the Secretary of State, the Welsh
Ministers or the Privy Council under this Act, must be made by statutory
instrument.

(3) Subject to subsections (4) to (6), a statutory instrument containing regulations
under this Act, or an order by the Secretary of State or the Privy Council under
25this Act, is subject to annulment in pursuance of a resolution of either House of
Parliament.

(4) Subsection (3) does not apply to an order under section 306 (commencement).

(5) A statutory instrument which contains (whether alone or with other provision)
any of the following may not be made unless a draft of the instrument has been
30laid before, and approved by a resolution of, each House of Parliament—

(a) regulations under section 65 (extension of Monitor’s functions to adult
social care services);

(b) the first regulations under section 83 (licensing requirement: exemption
regulations);

(c) 35the first order under section 86 (approval by Secretary of State of
licensing criteria);

(d) regulations under section 100(7)(b) or (c) (percentage to be prescribed
in cases of objections to proposals to modify standard licence
conditions);

(e) 40regulations under section 105(4) (manner in which turnover to be
calculated for purposes of penalty for breach of licence conditions etc.);

(f) regulations under section 106(3)(d) (descriptions of action for
specifying in enforcement undertaking for breach of licence conditions
etc.);

(g) 45regulations under section 120(2)(a), (b) or (c) (percentage to be
prescribed in cases of objections to proposals for national tariff);

(h) regulations under section 130 (health special administration
regulations);

(i) an order under section 140 (maximum amount that may be raised from
levy to raise funds for special administration cases);

(j) 5regulations under section 142(2)(b) (percentage to be prescribed in
cases of objections to proposals to impose levy);

(k) an order under section 290(4) (addition to list of bodies subject to duty
co-operate);

(l) an order under section 291(5) (order prohibiting bodies subject to duty
10to co-operate from exercising specified functions etc.);

(m) an order under section 303 (consequential provision) which includes
provision that amends or repeals a provision of an Act of Parliament;

(n) regulations which, by virtue of subsection (10)(a), include provision
that amends or repeals a provision of an Act of Parliament.

(6) 15An order by the Privy Council under this Act that includes provision which
would, if included in an Act of the Scottish Parliament, fall within the
legislative competence of that Parliament is subject to the negative procedure
in that Parliament (in addition to the statutory instrument containing the order
being subject to annulment under subsection (3)).

(7) 20Sections 28 and 31 of the Interpretation and Legislative Reform (Scotland) Act
2010 (negative procedure etc.) apply in relation to an order of the description
given in subsection (6) as they apply in relation to devolved subordinate
legislation (within the meaning of Part 2 of that Act) that is subject to the
negative procedure, but as if references to a Scottish statutory instrument were
25references to a statutory instrument.

(8) Section 32 of that Act (laying) shall apply in relation to the laying of a statutory
instrument containing an order of the description given in subsection (6) before
the Scottish Parliament as it applies in relation to the laying of a Scottish
statutory instrument (within the meaning of Part 2 of that Act) before that
30Parliament.

(9) A power to make regulations under this Act, a power of the Secretary of State,
the Welsh Ministers or the Privy Council to make an order under this Act, and
(subject to section 71(3)) a power to give directions under or by virtue of this
Act—

(a) 35may be exercised either in relation to all cases to which the power
extends, or in relation to those cases subject to specified exceptions, or
in relation to any specified cases or descriptions of case,

(b) may be exercised so as to make, as respects the cases in relation to
which it is exercised—

(i) 40the full provision to which the power extends or any less
provision (whether by way of exception or otherwise),

(ii) the same provision for all cases in relation to which the power
is exercised, or different provision for different cases or
different descriptions of case, or different provision as respects
45the same case or description of case for different purposes of
this Act,

(iii) any such provision either unconditionally or subject to any
specified condition, and

(c) may, in particular, make different provision for different areas.

(10) 50Any such power includes—