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Health and Social Care Bill (HL Bill 132)

Health and Social Care BillPage 70

(b) no other local authority which is affected by the proposal
informs the proposer that it wishes to participate in the exercise
of the functions.

(2) The local authorities affected by the proposal must—

(a) 5arrange for an existing joint committee of the authorities to
exercise the relevant functions,

(b) establish a joint committee of the authorities for that purpose, or

(c) arrange for the Health and Wellbeing Boards established by
them under section 194 of the Health and Social Care Act 2012
10to exercise the relevant functions.

(a)(a)arrange for an existing joint committee of the authorities to
exercise the relevant functions,

(b) establish a joint committee of the authorities for that purpose, or

(c) arrange for the Health and Wellbeing Boards established by
15them under section 194 of the Health and Social Care Act 2012
to exercise the relevant functions.

(3) The duty in subsection (2) does not apply in relation to the proposal if
the Secretary of State so directs by an instrument in writing.

(4) The Secretary of State may by regulations provide that the duty in
20subsection (2) does not apply in prescribed circumstances.

(5) Where arrangements are made under subsection (2)(c) the Health and
Wellbeing Boards in question must exercise the power conferred by
section 198(b) of the Health and Social Care Act 2012 to establish a joint
sub-committee of the Boards to exercise the relevant functions.

(6) 25The Secretary of State may by regulations make provision—

(a) for subsection (2)(a) to apply only in relation to a joint
committee which meets prescribed conditions as to its
membership;

(b) as to the membership of a joint committee established under
30subsection (2)(b) (including provision as to qualification and
disqualification for membership and the holding and vacating
of office as a member);

(c) as to the membership of a joint sub-committee of Health and
Wellbeing Boards established in accordance with subsection (5);

(d) 35as to the procedure to be followed by any joint committee, or
any joint sub-committee of Health and Wellbeing Boards, in
exercising the relevant functions.

88N Secretary of State’s duty in relation to requests for variation or
termination

(1) 40This section applies if (following the making of a variation or
termination proposal) the Secretary of State is requested—

(a) to request a variation of arrangements entered into under
section 87(1), or

(b) (as the case may be) to give notice under section 87C(7) to a
45water undertaker to terminate such arrangements.

(2) The Secretary of State must comply with the request if satisfied that the
requirements imposed by sections 88I to 88M have been met in relation
to the proposal.

(3) Subsection (2) does not require the Secretary of State to consider the
50adequacy of any steps taken for the purposes of complying with any
requirement to consult or to ascertain opinion which is imposed under
or by virtue of section 88J(2) or (3), 88K(6) or 88L(2).

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88O Power to make regulations as to maintenance of section 87
arrangements

(1) The Secretary of State may by regulations prescribe circumstances in
which arrangements must be made in accordance with the
5regulations—

(a) for consulting and ascertaining opinion on whether
arrangements under section 87(1) (“section 87(1)
arrangements”) should be maintained, and

(b) for enabling authorities affected by section 87(1) arrangements
10to decide whether to propose to the Secretary of State that they
be maintained.

(2) The regulations must make provision requiring the Secretary of State to
give notice under section 87C(7) to a water undertaker to terminate
section 87(1) arrangements entered into by the undertaker if—

(a) 15the outcome of arrangements made by virtue of subsection
(1)(b) is that the affected authorities decide not to propose that
the section 87(1) arrangements be maintained, and

(b) the Secretary of State is satisfied that any requirements imposed
by regulations under subsection (1), as to the arrangements to
20be made for the purposes mentioned in that subsection, have
been met.

(3) Subsection (2)(b) does not require the Secretary of State to consider the
adequacy of any steps taken for the purposes of complying with any
requirement to consult or to ascertain opinion which is imposed by
25regulations made under subsection (1).

(4) The provision that may be made by regulations under subsection (1) (as
to the arrangements to be made for the purposes mentioned in that
subsection) includes provision corresponding, or similar, to any
requirements imposed by or under sections 88K to 88M.

37 30Fluoridation of water supplies: transitional provision

(1) In relation to any time on or after the commencement of section 35, any
relevant arrangements which have effect immediately before its
commencement are to be treated for the purposes of Chapter 4 of Part 3 of the
Water Industry Act 1991 as if they were arrangements entered into by the
35water undertaker with the Secretary of State under section 87(1) of that Act.

(2) In subsection (1) “relevant arrangements” means—

(a) any arrangements entered into by a water undertaker with a Strategic
Health Authority under section 87(1) of the Water Industry Act 1991,
and

(b) 40any arrangements which are treated as arrangements falling within
paragraph (a) by virtue of section 91 of that Act (as it had effect
immediately before the commencement of this section).

(3) In its application to arrangements which are treated by virtue of subsection (1)
as arrangements entered into by a water undertaker with the Secretary of State
45under section 87(1) of the Water Industry Act 1991, section 88H of that Act

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applies as if for subsection (3) there were substituted—

(3) The amount to be paid by each of the affected local authorities is to be
determined by agreement between the local authorities..

(4) Section 91 of the Water Industry Act 1991 (pre-1985 fluoridation schemes)
5ceases to have effect in relation to arrangements which are (by virtue of
subsection (1)) treated as if they were arrangements entered into by a water
undertaker with the Secretary of State under section 87(1) of that Act.

Functions relating to mental health matters

38 Approval functions

(1) 10After section 12 of the Mental Health Act 1983 insert—

12ZA Agreement for exercise of approval function: England

(1) The Secretary of State may enter into an agreement with another person
for an approval function of the Secretary of State to be exercisable by
the Secretary of State concurrently—

(a) 15with that other person, and

(b) if a requirement under section 12ZB has effect, with the other
person by whom the function is exercisable under that
requirement.

(2) In this section and sections 12ZB and 12ZC, “approval function”
20means—

(a) the function under section 12(2), or

(b) the function of approving persons as approved clinicians.

(3) An agreement under this section may, in particular, provide for an
approval function to be exercisable by the other party—

(a) 25in all circumstances or only in specified circumstances;

(b) in all areas or only in specified areas.

(4) An agreement under this section may provide for an approval function
to be exercisable by the other party—

(a) for a period specified in the agreement, or

(b) 30for a period determined in accordance with the agreement.

(5) The other party to an agreement under this section must comply with
such instructions as the Secretary of State may give with respect to the
exercise of the approval function.

(6) An instruction under subsection (5) may require the other party to
35cease to exercise the function to such extent as the instruction specifies.

(7) The agreement may provide for the Secretary of State to pay
compensation to the other party in the event of an instruction such as is
mentioned in subsection (6) being given.

(8) An instruction under subsection (5) may be given in such form as the
40Secretary of State may determine.

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(9) The Secretary of State must publish instructions under subsection (5) in
such form as the Secretary of State may determine; but that does not
apply to an instruction such as is mentioned in subsection (6).

(10) An agreement under this section may provide for the Secretary of State
5to make payments to the other party; and the Secretary of State may
make payments to other persons in connection with the exercise of an
approval function by virtue of this section.

12ZB Requirement to exercise approval functions: England

(1) The Secretary of State may impose a requirement on the National
10Health Service Commissioning Board (“the Board”) or a Special Health
Authority for an approval function of the Secretary of State to be
exercisable by the Secretary of State concurrently—

(a) with the Board or (as the case may be) Special Health Authority,
and

(b) 15if an agreement under section 12ZA has effect, with the other
person by whom the function is exercisable under that
agreement.

(2) The Secretary of State may, in particular, require the body concerned to
exercise an approval function—

(a) 20in all circumstances or only in specified circumstances;

(b) in all areas or only in specified areas.

(3) The Secretary of State may require the body concerned to exercise an
approval function—

(a) for a period specified in the requirement, or

(b) 25for a period determined in accordance with the requirement.

(4) Where a requirement under subsection (1) is imposed, the Board or (as
the case may be) Special Health Authority must comply with such
instructions as the Secretary of State may give with respect to the
exercise of the approval function.

(5) 30An instruction under subsection (4) may be given in such form as the
Secretary of State may determine.

(6) The Secretary of State must publish instructions under subsection (4) in
such form as the Secretary of State may determine.

(7) Where the Board or a Special Health Authority has an approval
35function by virtue of this section, the function is to be treated for the
purposes of the National Health Service Act 2006 as a function that it
has under that Act.

(8) The Secretary of State may make payments in connection with the
exercise of an approval function by virtue of this section.

12ZC 40Provision of information for the purposes of section 12ZA or 12ZB

(1) A relevant person may provide another person with such information
as the relevant person considers necessary or appropriate for or in
connection with—

(a) the exercise of an approval function; or

(b) 45the exercise by the Secretary of State of the power—

(i) to enter into an agreement under section 12ZA;

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(ii) to impose a requirement under section 12ZB; or

(iii) to give an instruction under section 12ZA(5) or 12ZB(4).

(2) The relevant persons are—

(a) the Secretary of State;

(b) 5a person who is a party to an agreement under section 12ZA; or

(c) if the Secretary of State imposes a requirement under section
12ZB on the National Health Service Commissioning Board or a
Special Health Authority, the Board or (as the case may be)
Special Health Authority.

(3) 10This section, in so far as it authorises the provision of information by
one relevant person to another relevant person, has effect
notwithstanding any rule of common law which would otherwise
prohibit or restrict the provision.

(4) In this section, “information” includes documents and records.

(2) 15In section 54(1) of that Act (requirement for certain medical evidence etc. to be
from practitioner approved under section 12 of the Act), after “the Secretary of
State” insert “, or by another person by virtue of section 12ZA or 12ZB above,”.

(3) In section 139(4) of that Act (protection for acts done in pursuance of the Act:
exceptions), at the end insert “or against a person who has functions under this
20Act by virtue of section 12ZA in so far as the proceedings relate to the exercise
of those functions”.

(4) In section 145(1) of that Act (interpretation), in the definition of “approved
clinician”, after “the Secretary of State” insert “or another person by virtue of
section 12ZA or 12ZB above”.

(5) 25In each of the following provisions, after “the Secretary of State” insert “, or by
another person by virtue of section 12ZA or 12ZB of that Act,”—

(a) in section 8(2) of the Criminal Procedure (Insanity) Act 1964
(interpretation), in the definition of “duly approved”,

(b) in section 51(1) of the Criminal Appeal Act 1968 (interpretation), in the
30definition of “duly approved”,

(c) in section 6(1) of the Criminal Procedure (Insanity and Unfitness to
Plead) Act 1991 (interpretation), in the definition of “duly approved”,

(d) in section 157(6) of the Criminal Justice Act 2003 (mentally disordered
offenders: definition of “medical report”),

(e) 35in section 172(1) of the Armed Forces Act 2006 (fitness to stand trial etc:
definition of “duly approved”), and

(f) in section 258(5) of that Act (mentally disordered offenders), in the
definition of “medical report”.

39 Discharge of patients

(1) 40In section 23 of the Mental Health Act 1983 (discharge of patients), omit
subsections (3) and (3A).

(2) In section 24 of that Act (visiting and examination of patients), omit subsections
(3) and (4).

(3) In Schedule 1 to that Act (application of certain provisions of that Act to
45patients subject to hospital and guardianship orders)—

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(a) in Part 1, in paragraph 1, omit “24(3) and (4),”, and

(b) in Part 2, in paragraph 1, omit “24(3) and (4),”.

(4) In consequence of the repeals made by this section—

(a) in the National Health Service and Community Care Act 1990, in
5Schedule 9—

(i) omit paragraph 24(3)(a) and the “and” following it, and

(ii) omit paragraph 24(4),

(b) in the Health Authorities Act 1995, in Schedule 1, omit paragraph
107(2)(a) and (3),

(c) 10in the Care Standards Act 2000, in Schedule 4, omit paragraph 9(3),

(d) in the Health and Social Care (Community Health and Standards) Act
2003, in Schedule 4, omit paragraphs 53(a) and 54,

(e) in the Domestic Violence, Crime and Victims Act 2004—

(i) omit sections 37A(5), 38A(3), 43A(5) and 44A(3),

(ii) 15in section 37A(7)(a), omit “, (5)”, and

(iii) in section 43A(7), omit “, (5)”, and

(f) in the Mental Health Act 2007, in Schedule 3, omit paragraphs 10(5) and
(6) and 11(3) and (4).

40 After-care

(1) 20Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.

(2) In subsection (2)—

(a) after “duty of the” insert “clinical commissioning group or”,

(b) omit “Primary Care Trust or” in each place it appears,

(c) for “such time as the” substitute “such time as (in relation to England)
25the clinical commissioning group or”.

(3) After subsection (2C) insert—

(2D) Subsection (2), in its application to the clinical commissioning group,
has effect as if for “to provide” there were substituted “to arrange for
the provision of”.

(2E) 30The Secretary of State may by regulations provide that the duty
imposed on the clinical commissioning group by subsection (2) is, in
the circumstances or to the extent prescribed by the regulations, to be
imposed instead on another clinical commissioning group or the
National Health Service Commissioning Board.

(2F) 35Where regulations under subsection (2E) provide that the duty
imposed by subsection (2) is to be imposed on the National Health
Service Commissioning Board, subsections (2D and (2E) have effect as
if references to the clinical commissioning group were references to the
National Health Service Commissioning Board.

(2G) 40Section 272(7) and (8) of the National Health Service Act 2006 applies to
the power to make regulations under subsection (2E) as it applies to a
power to make regulations under that Act.

(4) In subsection (3)—

(a) after “section “the” insert “clinical commissioning group or”,

(b) 45omit “Primary Care trust or” in each place it appears, and

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(c) after “means the”, in the first place it appears, insert “clinical
commissioning group or”.

(5) In consequence of the repeals made by subsections (2)(b) and (5)(b), omit
paragraph 47 of Schedule 2 to the National Health Service Reform and Health
5Care Professions Act 2002.

41 Provision of pocket money for in-patients

(1) Section 122 of the Mental Health Act 1983 (provision of pocket money for in-
patients) is amended as follows.

(2) In subsection (1)—

(a) 10for “Secretary of State may” substitute “Welsh Ministers may (in
relation to Wales)”,

(b) for “he thinks fit” substitute “the Welsh Ministers think fit”,

(c) for “their” substitute “those persons’”,

(d) for “him” substitute “the Welsh Ministers”, and

(e) 15for “they” substitute “those persons”.

(3) In subsection (2)—

(a) omit “the National Health Service Act 2006 and”, and

(b) for “either of those Acts” substitute “that Act”.

(4) In section 146 of that Act (application to Scotland), omit “122,”.

42 20Transfers to and from special hospitals

(1) Omit section 123 of the Mental Health Act 1983 (transfers to and from special
hospitals).

(2) In section 68A of that Act (power to reduce periods after which cases must be
referred to tribunal), in subsection (4)—

(a) 25after paragraph (c), insert “or”,

(b) omit the “or” following paragraph (d), and

(c) omit paragraph (e).

(3) In section 138 of that Act (retaking of patients escaping from custody), in
subsection (4)(a), omit “or under section 123 above”.

(4) 30In consequence of the repeal made by subsection (1), omit paragraph 67 of
Schedule 4 to the Health Act 1999.

(5) This section does not affect—

(a) the authority for the detention of a person who is liable to be detained
under the Mental Health Act 1983 before the commencement of this
35section,

(b) that Act in relation to any application, order or direction for admission
or removal to a hospital made under that Act before that
commencement, or

(c) the authority for the retaking of a person who, before that
40commencement, escapes while being taken to or from a hospital as
mentioned in section 138(4)(a) of that Act.

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43 Independent mental health advocates

(1) In section 130A of the Mental Health Act 1983 (independent mental health
advocates: England), in subsection (1)—

(a) for “The Secretary of State” substitute “A local social services authority
5whose area is in England”, and

(b) at the end insert “for whom the authority is responsible for the
purposes of this section”.

(2) In subsection (4) of that section, for “the Secretary of State” substitute “a local
social services authority”.

(3) 10In section 130C of that Act (provision supplementary to section 130A), after
subsection (4) insert—

(4A) A local social services authority is responsible for a qualifying patient
if—

(a) in the case of a qualifying patient falling within subsection (2)(a)
15above, the hospital or registered establishment in which he is
liable to be detained is situated in that authority’s area;

(b) in the case of a qualifying patient falling within subsection (2)(b)
above, that authority is the responsible local social services
authority within the meaning of section 34(3) above;

(c) 20in the case of a qualifying patient falling within subsection
(2)(c), the responsible hospital is situated in that authority’s
area;

(d) in the case of a qualifying patient falling within subsection (3)—

(i) in a case where the patient has capacity or is competent
25to do so, he nominates that authority as responsible for
him for the purposes of section 130A above, or

(ii) in any other case, a donee or deputy or the Court of
Protection, or a person engaged in caring for the patient
or interested in his welfare, nominates that authority on
30his behalf as responsible for him for the purposes of that
section.

(4B) In subsection (4A)(d) above—

(a) the reference to a patient who has capacity is to be read in
accordance with the Mental Capacity Act 2005;

(b) 35the reference to a donee is to a donee of a lasting power of
attorney (within the meaning of section 9 of that Act) created by
the patient, where the donee is acting within the scope of his
authority and in accordance with that Act;

(c) the reference to a deputy is to a deputy appointed for the patient
40by the Court of Protection under section 16 of that Act, where
the deputy is acting within the scope of his authority and in
accordance with that Act.

(4) In Schedule 1 to the Local Authority Social Services Act 1970 (social services
functions), in the entry for the Mental Health Act 1983, at the appropriate place

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insert—

Section 130A Making arrangements to enable
independent mental health
advocates to be available to help
5qualifying patients.

44 Patients’ correspondence

(1) In section 134 of the Mental Health Act 1983 (patients’ correspondence), in
subsection (1)—

(a) before “the approved clinician” insert “or”, and

(b) 10omit “or the Secretary of State”.

(2) Subsection (1) of this section does not affect the validity of any requests made
to the Secretary of State under section 134(1) of that Act and having effect
immediately before the commencement of this section.

45 Notification of hospitals having arrangements for special cases

(1) 15In section 140 of the Mental Health Act 1983 (notification of hospitals having
arrangements for special cases)—

(a) after “the duty of” insert “every clinical commissioning group and of”,

(b) omit “every Primary Care Trust and of”,

(c) after “the area of the” insert “clinical commissioning group or”,

(d) 20omit “Primary Care Trust or” in the first place it appears,

(e) after “available to the” insert “clinical commissioning group or”, and

(f) omit “Primary Care Trust or” in the second place it appears.

(2) In consequence of the repeals made by this section, in the National Health
Service Reform and Health Care Professions Act 2002, in Schedule 2, omit
25paragraph 48(a) and (c).

Emergency powers

46 Role of the Board and clinical commissioning groups in respect of
emergencies

For the cross-heading preceding section 253 of the National Health Service Act
302006 substitute “Emergencies: role of the Secretary of State, the Board and
clinical commissioning groups” and after the cross-heading insert—

252A Role of the Board and clinical commissioning groups in respect of
emergencies

(1) The Board and each clinical commissioning group must take
35appropriate steps for securing that it is properly prepared for dealing
with a relevant emergency.

(2) The Board must take such steps as it considers appropriate for securing
that each clinical commissioning group is properly prepared for
dealing with a relevant emergency.

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(3) The steps taken by the Board under subsection (2) must include
monitoring compliance by each clinical commissioning group with its
duty under subsection (1).

(4) The Board must take such steps as it considers appropriate for securing
5that each relevant service provider is properly prepared for dealing
with a relevant emergency.

(5) The steps taken by the Board under subsection (4) must include
monitoring compliance by the service provider with any requirements
imposed on it by its service arrangements for the purpose of securing
10that it is properly prepared for dealing with a relevant emergency.

(6) The Board may take such steps as it considers appropriate for
facilitating a co-ordinated response to an emergency by the clinical
commissioning groups and relevant service providers for which it is a
relevant emergency.

(7) 15The Board may arrange for any body or person to exercise any
functions of the Board under subsections (2) to (6).

(8) Where the Board makes arrangements with another body or person
under subsection (7) it may also arrange for that other body or person
to exercise any functions that the Board has, by virtue of being a
20Category 1 responder, under Part 1 of the Civil Contingencies Act 2004.

(9) A relevant service provider must appoint an individual to be
responsible for—

(a) securing that the provider is properly prepared for dealing with
a relevant emergency,

(b) 25securing that the provider complies with any requirements
mentioned in subsection (5), and

(c) providing the Board with such information as it may require for
the purpose of discharging its functions under this section.

(10) In this section—

  • 30“relevant emergency”—

    (a)

    in relation to the Board or a clinical commissioning
    group, means any emergency which might affect the
    Board or the group (whether by increasing the need for
    the services that it may arrange or in any other way);

    (b)

    35in relation to a relevant service provider, means any
    emergency which might affect the provider (whether by
    increasing the need for the services that it may provide
    or in any other way);

  • “relevant service provider” means any body or person providing
    40services in pursuance of service arrangements;

  • “service arrangements”, in relation to a relevant service provider,
    means arrangements made by the Board or a clinical
    commissioning group under or by virtue of section 3, 3A, 3B, 4
    or 7A or Schedule 1.

47 45Secretary of State’s emergency powers

(1) Section 253 of the National Health Service Act 2006 (emergency powers) is
amended as follows.