Care Bill (HL Bill 1)

(c) impose conditions or other restrictions on the exercise of the power
under subsection (1), whether by amending this section or otherwise.

(10) The provision which may be made in an order under subsection (9) in reliance
on section 109(7) (supplementary etc. provision in orders under this Act)
5includes, in particular, provision as to the rights and obligations of local
authorities and persons authorised under this section in light of the provision
made by the order.

(11) “Function” includes a power to do anything that is calculated to facilitate, or is
conducive or incidental to, the exercise of a function.

10General

73 Part 1: interpretation

(1) For the purposes of this Part, an expression in the first column of the following
table is defined or otherwise explained by the provision of this Act specified in
the second column.

(2) A reference in this Part to having or lacking capacity, or to a person’s best
interests, is to be interpreted in accordance with the Mental Capacity Act 2005.

(3) A reference in this Part to being authorised under the Mental Capacity Act 2005
is a reference to being authorised (whether in general or specific terms) as—

(a) 15a donee of a lasting power of attorney granted under that Act, or

(b) a deputy appointed by the Court of Protection under section 16(2)(b) of
that Act.

Part 2 Care standards

20Quality of services

74 Warning notice

(1) In section 29 of the Health and Social Care Act 2008 (warning notice), after
subsection (1) insert—

“(1A) But a warning notice under this section may not be given to an NHS
25trust established under section 25 of the National Health Service Act
2006 or an NHS foundation trust.”

(2) In subsections (2) and (3)(a) of that section, after “warning notice” insert “under
this section”.

(3) After that section insert—

“29A 30Warning notice: quality of health care

(1) If it appears to the Commission that the quality of health care provided
by an NHS trust established under section 25 of the National Health
Service Act 2006 or by an NHS foundation trust requires significant
improvement, the Commission may give the trust a warning notice.

(2) 35A warning notice under this section is a notice in writing—

(a) stating that the Commission has formed the view that the
quality of health care provided by the trust requires significant
improvement,

(b) specifying the health care concerned,

(c) 5giving the Commission’s reasons for its view, and

(d) requiring the trust to make a significant improvement to the
quality of the health care concerned within a specified time.

(3) Where a warning notice under this section imposes more than one
requirement under subsection (2)(d), it may specify different times for
10different requirements.

(4) The Commission must—

(a) where the notice specifies only one time under subsection
(2)(d), determine at the end of that time whether the
requirement has been complied with;

(b) 15where the notice specifies more than one time under subsection
(2)(d), determine at the end of the latest of those times, whether
the requirements have been complied with.

(5) Where, having carried out the duty under subsection (4), the
Commission is satisfied that a requirement to which the notice relates
20has not been complied with, it—

(a) must decide what action to take in relation to the trust, and

(b) in so deciding in the case of an NHS foundation trust, must
consider in particular whether to require Monitor to make an
order under section 65D(2) of the National Health Service Act
252006 (appointment of trust special administrator).”

(4) In each of the following provisions of that Act, after “section 29” insert “or
29A”—

(a) section 32(1)(a) (decisions against which appeal may not be made to the
First-tier tribunal),

(b) 30section 39(2)(c) (bodies required to be given certain notices), and

(c) section 89(1)(e) and (2) (publication of information relating to
enforcement action).

(5) In section 88(1)(d) of that Act (guidance issued by the Commission about
enforcement action), for “section 29” substitute “sections 29 and 29A”.

75 35Imposition of licence conditions on NHS foundation trusts

(1) Section 111 of the Health and Social Care Act 2012 (imposition by Monitor of
licence conditions on NHS foundation trusts during transitional period) is
amended as follows.

(2) After subsection (2) insert—

“(2A) 40Where a warning notice under section 29A of the Health and Social
Care Act 2008 is given to an NHS foundation trust, Monitor may
include in the trust’s licence such conditions as it considers appropriate
in connection with the matters to which the notice relates.”

(3) In subsections (3) to (5) and (7) to (9), after “subsection (1)” in each place it
45appears insert “or (2A)”.

76 Trust special administration: appointment of administrator

(1) In section 65D of the National Health Service Act 2006 (NHS foundation trusts:
appointment of trust special administrator), in subsection (1)—

(a) after “satisfied that” insert “—

(a)”, and

(b) at the end insert “, or

(b) there is a serious failure by an NHS foundation trust to
provide services that are of sufficient quality to be
provided under this Act and it is appropriate to make an
10order under subsection (2).”

(2) After that subsection insert—

“(1A) This section also applies if the Care Quality Commission—

(a) is satisfied that there is a serious failure by an NHS foundation
trust to provide services that are of sufficient quality to be
15provided under this Act and that it is appropriate to make an
order under subsection (2),

(b) informs the regulator that it is satisfied as mentioned in
paragraph (a) and gives the regulator its reasons for being so
satisfied, and

(c) 20requires the regulator to make an order under subsection (2).”

(3) In subsection (2) of that section, after “The regulator may” insert “or, where this
section applies as a result of subsection (1A), must”.

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

“(3A) Before imposing a requirement as mentioned in subsection (1A)(c), the
25Care Quality Commission must—

(a) consult the Secretary of State and the regulator, and

(b) having done that, consult—

(i) the trust,

(ii) the Board, and

(iii) 30any other person to which the trust provides services
under this Act and which the Commission considers it
appropriate to consult.”

(5) In subsection (4) of that section, after “making an order under this section”
insert “(except where it is required to do so as a result of subsection (1A))”.

(6) 35In section 65N of that Act (guidance for trust special administrators), after
subsection (3) insert—

“(3A) Before publishing guidance under this section, the regulator must
consult the Care Quality Commission.”

77 Trust special administration: objective, consultation and reports

(1) 40In section 65DA of the National Health Service Act 2006 (objective of trust
special administration), in subsection (1), after paragraph (a) (but before the
following “and”) insert—

“(aa) that the services whose continuous provision is secured as
mentioned in paragraph (a) are of sufficient safety and quality
45to be provided under this Act,”.

(2) After subsection (5) of that section insert—

“(5A) Before publishing guidance under subsection (4)(c), the regulator must
consult the Care Quality Commission.”

(3) In section 65F of that Act (administrator’s draft report), in subsection (2)—

(a) 5omit the “and” preceding paragraph (b), and

(b) after that paragraph insert “, and

(c) the Care Quality Commission.”

(4) In subsection (2A) of that section, in paragraph (a), for “65DA” substitute
“65DA(1)(a)”.

(5) 10After that subsection insert—

“(2AA) Nor may the administrator provide the draft report to the regulator
under subsection (1) without having obtained from the Care Quality
Commission a statement that it considers that the recommendation in
the draft report would achieve that part of the objective set out in
15section 65DA(1)(aa).”

(6) In subsection (2B) of that section—

(a) after “Where the Board” insert “or the Care Quality Commission”,

(b) for “to that effect” substitute “to the effect mentioned in subsection (2A)
or (2AA)”, and

(c) 20after “, the Board” insert “or (as the case may be) the Commission”.

(7) In section 65G of that Act (consultation plan), in subsection (4), in paragraph
(a), for “65DA” substitute “65DA(1)(a)”.

(8) After that subsection insert—

“(4A) Nor may the administrator make a variation to the draft report
25following the consultation period without having obtained from the
Care Quality Commission a statement that it considers that the
recommendation in the draft report as so varied would achieve that
part of the objective set out in section 65DA(1)(aa).”

(9) In subsection (5) of that section—

(a) 30after “Where the Board” insert “or the Care Quality Commission”,

(b) for “to that effect” substitute “to the effect mentioned in subsection (4)
or (4A)”, and

(c) after “, the Board” insert “or (as the case may be) the Commission”.

(10) In section 65H of that Act (consultation requirements)—

(a) 35in subsection (7), after paragraph (b) insert—

“(ba) the Care Quality Commission;”, and

(b) in subsection (9), after “subsection (7)(b),” insert “(ba),”.

(11) In section 65KB of that Act (Secretary of State’s response to regulator’s
decision), in subsection (1), after paragraph (c) insert—

“(ca) 40that the Care Quality Commission has discharged its functions
for the purposes of this Chapter,”.

(12) In subsection (2) of that section, in paragraph (b), after “the regulator” insert
“and the Care Quality Commission”.

(13) In section 65KD of that Act (Secretary of State’s response to re-submitted final
report), in subsection (3), for “(8)” substitute “(8A)”.

(14) After subsection (8) of that section insert—

“(8A) If the notice states that the Care Quality Commission has failed to
5discharge a function—

(a) the Care Quality Commission is to be treated for the purposes
of this Act as having failed to discharge the function, and

(b) the failure is to be treated for those purposes as significant (and
section 82 of the Health and Social Care Act 2008 applies
10accordingly).”

Care Quality Commission

78 Restriction on applications for variation or removal of conditions

(1) Section 19 of the Health and Social Care Act 2008 (applications by registered
persons to the Care Quality Commission for variation or removal of
15conditions, etc.) is amended as follows.

(2) In subsection (1), after “Except in case A or B” insert “and subject to subsections
(3A) to (3F)”.

(3) After subsection (3) insert—

“(3A) R may not apply under subsection (1)(a) for the variation of a condition
20where either subsection (3B) or (3C) applies.

(3B) This subsection applies where—

(a) the Commission has given R notice under section 26(4)(c) of a
proposal to make that variation (or a variation which would
have substantially the same effect as that variation), and

(b) 25the Commission has not decided not to take that step.

(3C) This subsection applies where—

(a) the Commission has given R notice under section 28(3) of its
decision to make that variation (or a variation which would
have substantially the same effect as that variation), and

(b) 30either the time within which an appeal may be brought has not
expired or, if an appeal has been brought, it has not yet been
determined.

(3D) R may not apply under subsection (1)(a) for the removal of a condition
where either subsection (3E) or (3F) applies.

(3E) 35This subsection applies where—

(a) the Commission has given R notice under section 26(4)(c) of a
proposal to remove that condition, and

(b) the Commission has not decided not to take that step.

(3F) This subsection applies where—

(a) 40the Commission has given R notice under section 28(3) of its
decision to remove that condition, and

(b) either the time within which an appeal may be brought has not
expired or, if an appeal has been brought, it has not yet been
determined.”

(4) The amendments made by this section do not affect any application made
5under section 19(1)(a) of the Health and Social Care Act 2008 before the day on
which those amendments come into force.

79 Unitary board

(1) In paragraph 3 of Schedule 1 to the Health and Social Care Act 2008
(membership of the Care Quality Commission), in sub-paragraph (1)—

(a) 10after paragraph (a), omit “and”, and

(b) at the end of paragraph (b) insert “,

(c) a chief executive appointed by the members
appointed under paragraphs (a) and (b), and

(d) other members appointed by the members appointed
15under paragraphs (a) and (b)”.

(2) After that sub-paragraph, insert—

“(1A) The members appointed under sub-paragraph (1)(a) and (b)—

(a) are not employees of the Commission, and

(b) are referred to in this Schedule as the “non-executive
20members”.

(1B) The members appointed under sub-paragraph (1)(c) and (d)—

(a) are employees of the Commission, and

(b) are referred to in this Schedule as the “executive members”.

(1C) The number of non-executive members must exceed the number of
25executive members.”

(3) In sub-paragraph (2) of that paragraph—

(a) for “sub-paragraph (1)”, substitute “sub-paragraph (1)(a) and (b)”, and

(b) for “the members”, substitute “the non-executive members”.

(4) In sub-paragraph (3) of that paragraph, for “any other member”, substitute
30“any other non-executive member”.

(5) In sub-paragraph (4) of that paragraph—

(a) in paragraph (a)—

(i) for “other members”, substitute “other non-executive
members”, and

(ii) 35for “of members who may be appointed”, substitute “of such
members who may be appointed”,

(b) after paragraph (a), omit “and”,

(c) in paragraph (b), for “other members”, substitute “other non-executive
members”, and

(d) 40after paragraph (b), insert—

“(c) the limits on the total number of members who may
be appointed, and

(d) the minimum total number of members who must be
appointed”.

(6) In paragraph 4 of that Schedule (the cross-heading preceding which becomes
“Remuneration and allowances for non-executive members”), in sub-
paragraphs (1) and (2), for “any other member”, substitute “any other non-
executive member”.

(7) 5In paragraph 5 of that Schedule (employees), omit sub-paragraph (1).

(8) In sub-paragraph (2) of that paragraph, for “such other employees”, substitute
“such employees (in addition to the executive members appointed by the non-
executive members)”.

Performance ratings

80 10Reviews and performance assessments

(1) Chapter 3 of Part 1 of the Health and Social Care Act 2008 (the Care Quality
Commission: quality of health and social care) is amended as follows.

(2) For section 46 (periodic reviews of health and social care provision)
substitute—

“46 15Reviews and performance assessments

(1) The Commission must, in respect of such regulated activities and such
registered service providers as may be prescribed—

(a) conduct reviews of the carrying on of the regulated activities by
the service providers,

(b) 20assess the performance of the service providers following each
such review, and

(c) publish a report of its assessment.

(2) Regulations under subsection (1) may prescribe—

(a) all regulated activities or regulated activities of a particular
25description;

(b) all registered service providers or particular registered service
providers;

(c) the whole of a regulated activity or a particular aspect of it.

(3) The Commission must, in respect of such English local authorities as
30may be prescribed—

(a) conduct reviews of the provision of such adult social services
provided or commissioned by the authorities as may be
prescribed,

(b) assess the performance of the authorities following each such
35review, and

(c) publish a report of its assessment.

(4) Regulations under subsection (3) may prescribe—

(a) all adult social services or adult social services of a particular
description;

(b) 40all local authorities or particular local authorities.

(5) The assessment of the performance of a registered service provider or
local authority is to be by reference to whatever indicators of quality the
Commission devises.

(6) The Commission must prepare a statement—

(a) setting out the frequency with which reviews under this section
are to be conducted and the period to which they are to relate,
and

(b) 5describing the method that it proposes to use in assessing and
evaluating the performance of a registered service provider or
local authority under this section.

(7) The Commission may—

(a) use different indicators for different cases,

(b) 10make different provision about frequency and period of
reviews for different cases, and

(c) describe different methods for different cases.

(8) The Commission must publish—

(a) any indicators it devises for the purpose of subsection (5), and

(b) 15the statement it prepares for the purpose of subsection (6).

(9) Before doing so, the Commission—

(a) must consult the Secretary of State and such other persons, or
other persons of such a description, as may be prescribed, and

(b) may also consult any other persons it considers appropriate.

(10) 20The Commission may from time to time revise—

(a) any indicators it devises for the purpose of subsection (5), and

(b) the statement it prepares for the purpose of subsection (6);

and, if it does so, it must publish the indicators and statement as
revised.

(11) 25Subsection (9) applies to revised indicators and a revised statement, so
far as the Commission considers the revisions in question to be
significant.

(12) In this section “registered service provider” means a person registered
under Chapter 2 as a service provider.”

(3) 30Sections 47 (frequency and period of reviews under section 46) and 49 (power
to extend periodic review function) are repealed.

(4) In consequence of the preceding provisions of this section—

(a) in section 50(1) of the Health and Social Care Act 2008 (failings by
English local authorities), omit “or 49”;

(b) 35in section 51(1) of that Act (failings by Welsh NHS bodies), omit “or 49”;

(c) in section 70(3)(a) of that Act (provision by Commission to Monitor of
material relevant to review under section 46 or 49), omit “or 49”;

(d) in section 72(a) of that Act (provision by Commission to Comptroller
and Auditor General of material relevant to review under section 46 or
4049), omit “or 49”;

(e) in Schedule 5 to the Health and Social Care Act 2012 (amendments in
consequence of Part 1 of that Act), omit paragraphs 157, 159, 163 and
164.

False or misleading information

81 Offence

(1) A care provider of a specified description commits an offence if—

(a) it supplies, publishes or otherwise makes available information of a
5specified description,

(b) the supply, publication or making available by other means of
information of that description is required under an enactment or other
legal obligation, and

(c) the information is false or misleading in a material respect.

(2) 10But it is a defence for a care provider to prove that it took all reasonable steps
and exercised all due diligence to prevent the provision of false or misleading
information as mentioned in subsection (1).

(3) “Care provider” means—

(a) a public body which exercises functions in connection with the
15provision of health services or adult social care in England, or

(b) a body (other than a public body) which 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.

(4) 20“Health services” means services which must or may be provided as part of the
health service.

(5) “Adult social care”—

(a) includes all forms of personal care and other practical assistance for
individuals who, by reason of age, illness, disability, pregnancy,
25childbirth, dependence on alcohol or drugs, or any other similar
circumstances, are in need of such care 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
30Standards Act 2000.

(6) “Specified” means specified in regulations.

(7) If a care provider commits an offence under either of the provisions mentioned
in subsection (8) in respect of the provision of information, the provision of that
information by that provider does not also constitute an offence under
35subsection (1).

(8) The provisions referred to in subsection (7) are—

(a) section 44 of the Competition Act 1998 (provision of false or misleading
information) as applied by section 72 of the Health and Social Care Act
2012 (functions of the OFT under Part 1 of the Competition Act 1998 to
40be concurrent functions of Monitor), and

(b) section 117 of the Enterprise Act 2002 (provision of false or misleading
information) as applied by section 73 of the Health and Social Care Act
2012 (functions of the OFT under Part 4 of the Enterprise Act 2002 to be
concurrent functions of Monitor).

(9) 45If a care provider commits an offence under subsection (1) in respect of the
provision of information, the provision of that information by that provider