Health and Social Care Bill (HL Bill 132)

(14) For the purposes of this section—

(a) a failure to discharge a function includes a failure to discharge
it properly, and

(b) a failure to discharge a function properly includes a failure to
5discharge it consistently with what the Board considers to be
the interests of the health service.

Procedural requirements in connection with certain powers

14Z22 Procedural requirements in connection with certain powers

(1) Before exercising the power to dissolve a clinical commissioning group
10under section 14Z21(7) the Board must consult the following persons—

(a) the clinical commissioning group,

(b) relevant local authorities, and

(c) any other persons the Board considers it appropriate to consult.

(2) For that purpose, the Board must provide those persons with a
15statement—

(a) explaining that it is proposing to exercise the power, and

(b) giving its reasons for doing so.

(3) After consulting those persons (and before exercising the power), the
Board must publish a report containing its response to the consultation.

(4) 20If the Board decides to exercise the power, the report must, in
particular, explain its reasons for doing so.

(5) Regulations may make provision as to the procedure to be followed by
the Board before the exercise of the powers conferred by sections
14Z18, 14Z19 and 14Z21.

(6) 25The Board must publish guidance as to how it proposes to exercise the
powers conferred by those sections.

(7) For the purposes of subsection (1) a local authority is a relevant local
authority if its area coincides with, or includes the whole or any part of,
the area of the clinical commissioning group.

30Disclosure of information

14Z23 Permitted disclosures of information

(1) A clinical commissioning group may disclose information obtained by
it in the exercise of its functions if—

(a) the information has previously been lawfully disclosed to the
35public,

(b) the disclosure is made under or pursuant to regulations under
section 113 or 114 of the Health and Social Care (Community
Health and Standards) Act 2003 (complaints about health care
or social services),

(c) 40the disclosure is made in accordance with any enactment or
court order,

(d) the disclosure is necessary or expedient for the purposes of
protecting the welfare of any individual,

(e) the disclosure is made to any person in circumstances where it
is necessary or expedient for the person to have the information
for the purpose of exercising functions of that person under any
enactment,

(f) 5the disclosure is made for the purpose of facilitating the exercise
of any of the clinical commissioning group’s functions,

(g) the disclosure is made in connection with the investigation of a
criminal offence (whether or not in the United Kingdom), or

(h) the disclosure is made for the purpose of criminal proceedings
10(whether or not in the United Kingdom).

(2) Paragraphs (a) to (c) and (h) of subsection (1) have effect
notwithstanding any rule of common law which would otherwise
prohibit or restrict the disclosure.

Interpretation

14Z24 15 Interpretation

(1) In this Chapter—

• “financial year”, in relation to a clinical commissioning group,
  includes the period which begins on the day the group is
  established and ends on the following 31 March;

• 20“the health service” means the health service in England;

• “health services” means services provided as part of the health
  service and, in section 14Z2, also includes services that are to be
  provided as part of the health service;

• “relevant Health and Wellbeing Board”, in relation to a clinical
  25commissioning group, has the meaning given by section
  14Z11(9).

(2) Any reference (however expressed) in the following provisions of this
Act to the functions of a clinical commissioning group includes a
reference to the functions of the Secretary of State that are exercisable
30by the group by virtue of arrangements under section 7A—

• section 6E(7) and (10)(b),

• section 14C(2)(e),

• section 14P,

• section 14Q,

• 35section 14T,

• section 14U(1),

• section 14V,

• section 14W(1),

• section 14X,

• 40section 14Y,

• section 14Z,

• section 14Z1(1) and (2),

• section 14Z2(1),

• section 14Z4(1),

• 45section 14Z5(2),

• section 14Z6(1),

• section 14Z7(7),

Health and Social Care BillPage 52

• section 14Z11(1),

• section 14Z15(1),

• section 14Z16(2),

• sections 14Z17(1), 14Z19(1) and 14Z21(1) and (3),

• 5section 14Z23(1),

• section 72(1),

• section 75(1)(a) and (2),

• section 77(1)(b),

• section 82,

• 10section 89(1A)(d),

• section 94(3A)(d),

• section 223C(2)(b),

• section 223H(1),

• in Schedule 1A, paragraphs 3(1) and (3), 6, 12(9)(b) and 16(3).

(3) 15Any reference (however expressed) in the following provisions of other
Acts to the functions of a clinical commissioning group includes a
reference to the functions of the Secretary of State that are exercisable
by the group by virtue of arrangements under section 7A—

• sections 116 to 116B of the Local Government and Public
  20Involvement in Health Act 2007 (joint strategic needs
  assessments etc.),

• section 199(4) of the Health and Social Care Act 2012 (supply of
  information to Health and Wellbeing Boards),

• section 291(2)(d) of that Act (breaches of duties to co-operate),

• 25in Schedule 6 to that Act, paragraph 8(4).

(4) The Secretary of State may by order amend the list of provisions
specified in subsection (2) or (3).”

27 Financial arrangements for clinical commissioning groups

After section 223F of the National Health Service Act 2006 insert—

30“Clinical commissioning groups

223G Means of meeting expenditure of clinical commissioning groups out
of public funds

(1) The Board must pay in respect of each financial year to each clinical
commissioning group sums not exceeding the amount allotted for that
35year by the Board to the group towards meeting the expenditure of the
group which is attributable to the performance by it of its functions in
that year.

(2) In determining the amount to be allotted to a clinical commissioning
group for any year, the Board may take into account—

(a) 40the expenditure of the clinical commissioning group during any
previous financial year, and

(b) the amount that it proposes to hold, during the year to which
the allotment relates, in any contingency fund established
under section 223F.

(3) An amount is allotted to a clinical commissioning group for a year
under this section when the group is notified in writing by the Board
that the amount is allotted to it for that year.

(4) The Board may make a new allotment under this section increasing or
5reducing an allotment previously so made.

(5) Where the Board allots an amount to a clinical commissioning group or
makes a new allotment under subsection (4), it must notify the
Secretary of State.

(6) The Board may give directions to a clinical commissioning group with
10respect to—

(a) the application of sums paid to it by virtue of a new allotment
increasing an allotment previously so made, and

(b) the payment of sums by it to the Board in respect of charges or
other sums referable to the valuation or disposal of assets.

(a)(a)15the application of sums paid to it by virtue of a new allotment
increasing an allotment previously so made, and

(b) the payment of sums by it to the Board in respect of charges or
other sums referable to the valuation or disposal of assets.

(7) Sums falling to be paid to clinical commissioning groups under this
20section are payable subject to such conditions as to records, certificates
or otherwise as the Board may determine.

(8) In this section and sections 223H to 223K “financial year” includes the
period which begins on the day the clinical commissioning group is
established and ends on the following 31 March.

223H 25Financial duties of clinical commissioning groups: expenditure

(1) Each clinical commissioning group must, in respect of each financial
year, perform its functions so as to ensure that its expenditure which is
attributable to the performance by it of its functions in that year does
not exceed the aggregate of—

(a) 30the amount allotted to it for that year under section 223G,

(b) any sums received by it in that year under any provision of this
Act (other than sums received by it under section 223G), and

(c) any sums received by it in that year otherwise than under this
Act for the purpose of enabling it to defray such expenditure.

(2) 35The Board may by directions determine—

(a) whether specified sums must, or must not, be treated for the
purposes of this section as received by a specified clinical
commissioning group,

(b) whether specified expenditure must, or must not, be treated for
40those purposes as expenditure within subsection (1) of a
specified clinical commissioning group, or

(c) the extent to which, and the circumstances in which, sums
received by a clinical commissioning group under section 223G
but not yet spent must be treated for the purposes of this section
45as part of the expenditure of the group, and to which financial
year’s expenditure they must be attributed.

(b)(b)whether specified expenditure must, or must not, be treated for
those purposes as expenditure within subsection (1) of a
specified clinical commissioning group, or

(c) 50the extent to which, and the circumstances in which, sums
received by a clinical commissioning group under section 223G
but not yet spent must be treated for the purposes of this section
as part of the expenditure of the group, and to which financial
year’s expenditure they must be attributed.

(3) 55The Secretary of State may by directions require a clinical
commissioning group to use specified banking facilities for any
specified purposes.

(4) In this section, “specified” means specified in the directions.

223I Financial duties of clinical commissioning groups: use of resources

(1) 60For the purposes of this section and section 223J—

(a) a clinical commissioning group’s capital resource use, in
relation to a financial year, means the group’s use of capital
resources in that year, and

(b) a clinical commissioning group’s revenue resource use, in
65relation to a financial year, means the group’s use of revenue
resources in that year.

(2) A clinical commissioning group must ensure that its capital resource
use in a financial year does not exceed the amount specified by
direction of the Board.

(3) 70A clinical commissioning group must ensure that its revenue resource
use in a financial year does not exceed the amount specified by
direction of the Board.

(4) Any directions given in relation to a financial year under subsection (6)
of section 223D apply (in relation to that year) for the purposes of this
75section as they apply for the purposes of that section.

(5) The Board may by directions make provision for determining to which
clinical commissioning group a use of capital resources or revenue
resources is to be attributed for the purposes of this section or section
223J.

(6) 80Where the Board gives a direction under subsection (2) or (3), it must
notify the Secretary of State.

223J Financial duties of clinical commissioning groups: additional controls
on resource use

(1) The Board may direct a clinical commissioning group to ensure that its
85capital resource use in a financial year which is attributable to matters
specified in the direction does not exceed an amount so specified.

(2) The Board may direct a clinical commissioning group to ensure that its
revenue resource use in a financial year which is attributable to matters
specified in the direction does not exceed an amount so specified.

(3) 90The Board may direct a clinical commissioning group to ensure that its
revenue resource use in a financial year which is attributable to
prescribed matters relating to administration does not exceed an
amount specified in the direction.

(4) The Board may give directions, in relation to a financial year, specifying
95uses of capital resources or revenue resources which must, or must not,
be taken into account for the purposes of subsection (1) or (as the case
may be) subsection (2) or (3).

(5) The Board may not exercise the power conferred by subsection (1) or (2)
in relation to particular matters unless the Secretary of State has given
100a direction in relation to those matters under subsection (1) of section
223E or (as the case may be) subsection (2) of that section.

(6) The Board may not exercise the power conferred by subsection (3) in
relation to prescribed matters relating to administration unless the

Secretary of State has given a direction in relation to those matters
under subsection (3)(a) of section 223E.

223K Payments in respect of quality

(1) The Board may, after the end of a financial year, make a payment to a
5clinical commissioning group.

(2) For the purpose of determining whether to make a payment under
subsection (1) and (if so) the amount of the payment, the Board must
take into account at least one of the following factors—

(a) the quality of relevant services provided during the financial
10year;

(b) any improvement in the quality of relevant services provided
during that year (in comparison to the quality of relevant
services provided during previous financial years);

(c) the outcomes identified during the financial year as having
15been achieved from the provision at any time of relevant
services;

(d) any improvement in the outcomes identified during that
financial year as having been so achieved (in comparison to the
outcomes identified during previous financial years as having
20been so achieved).

(3) For that purpose, the Board may also take into account either or both of
the following factors—

(a) relevant inequalities identified during that year;

(b) any reduction in relevant inequalities identified during that
25year (in comparison to relevant inequalities identified during
previous financial years).

(4) Regulations may make provision as to the principles or other matters
that the Board must or may take into account in assessing any factor
mentioned in subsection (2) or (3).

(5) 30Regulations may provide that, in prescribed circumstances, the Board
may, if it considers it appropriate to do so—

(a) not make a payment that would otherwise be made to a clinical
commissioning group under subsection (1), or

(b) reduce the amount of such a payment.

(6) 35Regulations may make provision as to how payments under subsection
(1) may be spent (which may include provision as to circumstances in
which the whole or part of any such payments may be distributed to
members of the clinical commissioning group).

(7) A clinical commissioning group must publish an explanation of how
40the group has spent any payment made to it under subsection (1).

(8) In this section—

• “relevant services” means services provided in pursuance of
  arrangements made by the clinical commissioning group—

  (a)

  under section 3 or 3A or Schedule 1, or

  (b)

  45by virtue of section 7A;

Health and Social Care BillPage 55

• “relevant inequalities” means inequalities between the persons for
  whose benefit relevant services are at any time provided with
  respect to—

  (a)

  their ability to access the services, or

  (b)

  5the outcomes achieved for them by their provision.”

28 Requirement for primary medical services provider to belong to clinical
commissioning group

(1) In section 89 of the National Health Service Act 2006 (general medical services
contracts: required terms), after subsection (1) insert—

“(1A) 5Regulations under subsection (1) may, in particular, make provision—

(a) for requiring a contractor who provides services of a prescribed
description (a “relevant contractor”) to be a member of a clinical
commissioning group;

(b) as to arrangements for securing that a relevant contractor
10appoints one individual to act on its behalf in the dealings
between it and the clinical commissioning group to which it
belongs;

(c) for imposing requirements with respect to those dealings on the
individual appointed for the purposes of paragraph (b);

(d) 15for requiring a relevant contractor, in doing anything pursuant
to the contract, to act with a view to enabling the clinical
commissioning group to which it belongs to discharge its
functions (including its obligation to act in accordance with its
constitution).

(1B) 20Provision by virtue of subsection (1A)(a) may, in particular, describe
services by reference to the manner or circumstances in which they are
performed.

(1C) In the case of a contract entered into by two or more individuals
practising in partnership—

(a) 25regulations making provision under subsection (1A)(a) may
make provision for requiring each partner to secure that the
partnership is a member of the clinical commissioning group;

(b) regulations making provision under subsection (1A)(b) may
make provision as to arrangements for securing that the
30partners make the appointment;

(c) regulations making provision under subsection (1A)(d) may
make provision for requiring each partner to act as mentioned
there.

(1D) Regulations making provision under subsection (1A) for the case of a
35contract entered into by two or more individuals practising in
partnership may make provision as to the effect of a change in the
membership of the partnership.

(1E) The regulations may require an individual appointed for the purposes
of subsection (1A)(b)—

(a) 40to be a member of a profession regulated by a body mentioned
in section 25(3) of the National Health Service Reform and
Health Care Professions Act 2002, and

(b) to meet such other conditions as may be prescribed.”

(2) In section 94 of that Act (regulations about arrangements under section 92 of
that Act for provision of primary medical services), after subsection (3) insert—

“(3A) Regulations under subsection (3)(d) may—

(a) require a person who provides services of a prescribed
5description in accordance with section 92 arrangements (a
“relevant provider”) to be a member of a clinical commissioning
group;

(b) make provision as to arrangements for securing that a relevant
provider appoints one individual to act on its behalf in dealings
10between it and the clinical commissioning group to which it
belongs;

(c) impose requirements with respect to those dealings on the
individual appointed for the purposes of paragraph (b);

(d) require a relevant provider, in doing anything pursuant to
15section 92 arrangements, to act with a view to enabling the
clinical commissioning group to which it belongs to discharge
its functions (including its obligation to act in accordance with
its constitution).

(3B) Provision by virtue of subsection (3A)(a) may, in particular, describe
20services by reference to the manner or circumstances in which they are
performed.

(3C) In the case of an agreement made with two or more persons—

(a) regulations making provision under subsection (3A)(a) may
require each person to secure that the persons collectively are a
25member of the clinical commissioning group;

(b) regulations making provision under subsection (3A)(b) may
make provision as to arrangements for securing that the
persons collectively make the appointment;

(c) regulations making provision under subsection (3A)(d) may
30require each person to act as mentioned there.

(3D) Regulations making provision under subsection (3A) for the case of an
agreement made with two or more persons may make provision as to
the effect of a change in the composition of the group of persons
involved.

(3E) 35The regulations may require an individual appointed for the purposes
of subsection (3A)(b)—

(a) to be a member of a profession regulated by a body mentioned
in section 25(3) of the National Health Service Reform and
Health Care Professions Act 2002, and

(b) 40to meet such other conditions as may be prescribed.”

Further provision about local authorities’ role in the health service

29 Other health service functions of local authorities under the 2006 Act

(1) The National Health Service Act 2006 (c. 41)National Health Service Act 2006 (c. 41) is amended as follows.

(2) In section 111 (dental public health)—

(a) 45in subsection (1) for “A Primary Care Trust” substitute “A local
authority”,

(b) in subsection (2)—

(i) for “Primary Care Trust” (in each place where it occurs)
substitute “local authority”, and

(ii) in paragraph (b) for “other Primary Care Trusts” substitute
5“other local authorities”, and

(c) after subsection (2) insert—

“(3) In this section, “local authority” has the same meaning as in
section 2B.”

(3) In section 249 (joint working with the prison service) after subsection (4)
10insert—

“(4A) For the purposes of this section, each local authority (within the
meaning of section 2B) is to be treated as an NHS body.”

30 Appointment of directors of public health

In Part 3 of the National Health Service Act 2006 (local authorities and the
15NHS) before section 74 insert—

“73A Appointment of directors of public health

(1) Each local authority must, acting jointly with the Secretary of State,
appoint an individual to have responsibility for —

(a) the exercise by the authority of its functions under section 2B,
20111 or 249 or Schedule 1,

(b) the exercise by the authority of its functions by virtue of section
6C(1) or (3),

(c) anything done by the authority in pursuance of arrangements
under section 7A,

(d) 25the exercise by the authority of any of its functions that relate to
planning for, or responding to, emergencies involving a risk to
public health,

(e) the functions of the authority under section 325 of the Criminal
Justice Act 2003, and

(f) 30such other functions relating to public health as may be
prescribed.

(2) The individual so appointed is to be an officer of the local authority and
is to be known as its director of public health.

(3) Subsection (4) applies if the Secretary of State—

(a) 35considers that the director has failed or might have failed to
discharge (or to discharge properly) the responsibilities of the
director under—

(i) subsection (1)(b), or

(ii) subsection (1)(c) where the arrangements relate to the
40Secretary of State’s functions under section 2A, and

(b) has consulted the local authority.

(4) The Secretary of State may direct the local authority to—

(a) review how the director has discharged the responsibilities
mentioned in subsection (3)(a);

(b) investigate whether the director has failed to discharge (or to
discharge properly) those responsibilities;

(c) consider taking any steps specified in the direction;

(d) report to the Secretary of State on the action it has taken in
5pursuance of a direction given under any of the preceding
paragraphs.

(5) A local authority may terminate the appointment of its director of
public health.

(6) Before terminating the appointment of its director of public health, a
10local authority must consult the Secretary of State.

(7) A local authority must have regard to any guidance given by the
Secretary of State in relation to its director of public health, including
guidance as to appointment and termination of appointment, terms
and conditions and management.

(8) 15In this section, “local authority” has the same meaning as in section 2B.”

31 Exercise of public health functions of local authorities

In Part 3 of the National Health Service Act 2006 after section 73A insert—

“73B Exercise of public health functions of local authorities: further
provision

(1) 20A local authority must, in the exercise of any functions mentioned in
subsection (2), have regard to any document published by the Secretary
of State for the purposes of this section.

(2) The functions mentioned in this subsection are—

(a) the exercise by the authority of its functions under section 2B,
25111 or 249 or Schedule 1,

(b) the exercise by the authority of its functions by virtue of section
6C(1) or (3),

(c) anything done by the authority in pursuance of arrangements
under section 7A,

(d) 30the functions of the authority under section 325 of the Criminal
Justice Act 2003, and

(e) such other functions relating to public health as may be
prescribed.

(3) The Secretary of State may give guidance to local authorities as to the
35exercise of any functions mentioned in subsection (2).

(4) A document published under subsection (1), and guidance given under
subsection (3), may include guidance as to the appointment of officers
of the local authority to discharge any functions mentioned in
subsection (2), and as to their terms and conditions, management and
40dismissal.

(5) The director of public health for a local authority must prepare an
annual report on the health of the people in the area of the local
authority.

(6) The local authority must publish the report.