Care Bill [HL]

revised
fourth
MARSHALLED
LIST OF Amendments
to be moved
on report

The amendments have been marshalled in accordance with the Order of 8th October 2013, (as proposed to be varied by the motion in the name of Earl Howe) as follows—

Clauses 78 to 86
Schedule 5
Clauses 87 to 94
Schedule 6
Clauses 95 to 99
Schedule 7
Clauses 100 to 103
Schedule 8
Clauses 104 to 116

[Amendments marked * are new or have been altered]

After Clause 109

EARL HOWE

168A

Insert the following new Clause—

“Trust special administration: powers of administrator etc.

(1)   In section 65O of the National Health Service Act 2006 (Chapter 5A of Part
2: interpretation) (the existing text of which becomes subsection (1)) at the
end insert—

“(2)   The references in this Chapter to taking action in relation to an NHS
trust include a reference to taking action, including in relation to
another NHS trust or an NHS foundation trust, which is necessary
for and consequential on action taken in relation to that NHS trust.

“(3)   The references in this Chapter to taking action in relation to an NHS
foundation trust include a reference to taking action, including in
relation to another NHS foundation trust or an NHS trust, which is
necessary for and consequential on action taken in relation to that
14NHS foundation trust.”

(2)   In section 65F of that Act (administrator’s draft report), in subsection (1),
for “45 working days” substitute “65 working days”.

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

“(2D)    Where the administrator recommends taking action in relation to
another NHS foundation trust or an NHS trust, the references in
subsection (2A) to a commissioner also include a reference to a
person to which the other NHS foundation trust or the NHS trust
provides services under this Act that would be affected by the
action.”

(4)   In section 65G of that Act (consultation plan), in subsection (2), for “30
working days” substitute “40 working days”.

(5)   After subsection (6) of that section insert—

“(7)   Where the administrator recommends taking action in relation to
another NHS foundation trust or an NHS trust, the references in
subsection (4) to a commissioner also include a reference to a person
to which the other NHS foundation trust or the NHS trust provides
services under this Act that would be affected by the action.”

(6)   In section 65N of that Act (guidance), after subsection (1) insert—

“(1A)    It must, in so far as it applies to NHS trusts, include guidance
about—

(a)   seeking the support of commissioners for an
administrator’s recommendation;

(b)   involving the Board in relation to finalising an
administrator’s report or draft report.”

(7)   In section 13Q of that Act (public involvement and consultation by NHS
Commissioning Board), at the end insert—

“(4)   This section does not require the Board to make arrangements in
relation to matters to which a trust special administrator’s report or
draft report under section 65F or 65I relates before the Secretary of
State makes a decision under section 65K(1), is satisfied as
mentioned in section 65KB(1) or 65KD(1) or makes a decision under
section 65KD(9) (as the case may be).”

(8)   In section 14Z2 of that Act (public involvement and consultation by clinical
commissioning groups), at the end insert—

“(7)   This section does not require a clinical commissioning group to
make arrangements in relation to matters to which a trust special
administrator’s report or draft report under section 65F or 65I
relates before the Secretary of State makes a decision under section
65K(1), is satisfied as mentioned in section 65KB(1) or 65KD(1) or
makes a decision under section 65KD(9) (as the case may be).”

(9)   In section 242 of that Act (public involvement and consultation by NHS
trusts and foundation trusts), in subsection (6)—

(a)   for “65I, 65R or 65U” substitute “or 65I”, and

(b)   for the words from “the decision” to the end substitute “the
Secretary of State makes a decision under section 65K(1), is satisfied
as mentioned in section 65KB(1) or 65KD(1) or makes a decision
under section 65KD(9) (as the case may be).”

(10)   In Schedule 14 to the Health and Social Care Act 2012 (abolition of NHS
trusts in England: consequential amendments)—

(a)   after paragraph 4 insert—

“4A In section 13Q(4) (public involvement and consultation
by Board), omit “makes a decision under section 65K(1),”.

4B In section 14Z2 (public involvement and consultation by
clinical commissioning groups), omit “makes a decision
under section 65K(1),”.”,

(b)   in paragraph 15, after sub-paragraph (3) insert—

“(3A)    In subsection (2D), omit “or an NHS trust” and “or the
NHS trust.”,

(c)   in paragraph 16 (the text of which becomes sub-paragraph (1)) at
the end insert—

“(2)   In subsection (7) of that section, omit “or an NHS trust”
and “or the NHS trust”.”,

(d)   in paragraph 24, after sub-paragraph (2) insert—

“(2A)    Omit subsection (1A).”,

(e)   after that paragraph insert—

“24A          In section 65O (interpretation)—

(a)   omit subsection (2), and

(b)   in subsection (3), omit “or an NHS trust”.”, and

(f)   in paragraph 35, omit the “and” preceding paragraph (d) and after
that paragraph insert “, and

(e)   in subsection (6), omit “makes a decision under
section 65K(1),”.””

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

[As an amendment to amendment 168A]

168B*

Line 14, at end insert—

“( )   Before section 65F of that Act insert—

“65ZFZF           Trust special administration: measures required before powers
take effect

No power under this Act for the administrator to recommend
taking action in relation to another NHS foundation trust or an
NHS trust, or for any such action to be taken, shall be exercised
until—

(a)   at least 5 years have passed after the passing of the Care Act
2013;

(b)   the Secretary of State has reported to both Houses of
Parliament on the case for the operation of such a power;
and

(c)   an order made by statutory instrument giving effect to the
recommendations of such report has been laid before and
approved by a resolution of both Houses of Parliament.””

After Clause 79

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

141A*

Insert the following new Clause—

“Trust special administration: measures required before powers take effect

Before section 65F of the National Health Service Act 2006 insert—

“65ZFZF           Trust special administration: measures required before powers
take effect

No power under this Act for the administrator to recommend
taking action in relation to another NHS foundation trust or an
NHS trust, or for any such action to be taken, shall be exercised
until—

(a)   at least 5 years have passed after the passing of the Care Act
2013;

(b)   the Secretary of State has reported to both Houses of
Parliament on the case for the operation of such a power;
and

(c)   an order made by statutory instrument giving effect to the
recommendations of such report has been laid before and
approved by a resolution of both Houses of Parliament.””

After Clause 82

EARL HOWE

142

Insert the following new Clause—

“Chief Inspectors

After paragraph 3 of Schedule 1 to the Health and Social Care Act 2008
insert—

“Chief Inspectors

3A    (1)   The non-executive members must—

(a)   appoint an executive member to be the Chief Inspector of
Hospitals,

(b)   appoint an executive member to be the Chief Inspector of
Adult Social Care, and

(c)   appoint an executive member to be the Chief Inspector of
General Practice.

(2)   Each of those executive members is to exercise such functions of
the Commission on its behalf as it determines.

(3)   When exercising functions under sub-paragraph (2), an
executive member must have regard to the importance of
safeguarding and promoting the Commission’s independence
from the Secretary of State.””

143

Insert the following new Clause—

“Independence of the Care Quality Commission

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

(2)   In section 48 (special reviews or investigations), omit subsection (7)
(Secretary of State’s power to make regulations as to procedure for
representations before publication of report).

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


10

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

“(2A)    The Commission may not exercise the power under subsection
(1)(a), so far as it relates to the activity mentioned in subsection
(2)(d), without the approval of the Secretary of State.”

(5)   In section 55 (publication of results of studies under section 54), omit
subsection (2) (Secretary of State’s power to make regulations as to
procedure for representations before publication of report).

(6)   In section 57 (reviews of data, studies and research), in subsection (1), omit
“, with the approval of the Secretary of State,”.

(7)   In section 61 (inspections carried out for registration purposes), omit—

(a)   subsection (1) (Secretary of State’s power to make regulations
specifying frequency etc. of inspections), and

(b)   subsection (4) (Secretary of State’s power to make regulations as to
procedure for representations before publication of report).

(8)   In section 83 (annual reports), omit subsection (3) (Secretary of State’s
power to direct preparation of separate reports).

(9)   In paragraph 5 of Schedule 4 (inspection programmes etc.), omit—

(a)   in sub-paragraph (1) (preparation of programme etc.), “, or at such
times as the Secretary of State may specify by order,”, and

(b)   sub-paragraph (3) (Secretary of State’s power to specify form of
programme etc.).

(10)   In consequence of subsections (3) and (6), omit section 293(3) and (4) of the
Health and Social Care Act 2012.”

LORD WARNER

[As an amendment to Amendment 143]

143A


Line 10, leave out subsection (4)

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

144

Insert the following new Clause—

“Staffing numbers and skills mix

The Care Quality Commission shall, in carrying out its functions, have
regard to any official guidance on staffing numbers and skills mix.”

Clause 83

EARL HOWE

145

Page 72, leave out lines 16 to 27

146

Page 72, line 28, leave out “or local authority”

BARONESS GREENGROSS

147

Page 72, line 45, at end insert—

“( )   Indicators the Commission devises for the purposes of subsection
(5) should include indicators of the quality of services provided for
the identification and treatment of those conditions that most
frequently occur in a particular care setting.”

LORD HUNT OF KINGS HEATH

147A

Page 72, line 45, at end insert—

“( )   Indicators the Commission devises for the purposes of subsection
(5) may include indicators relating to the uptake of medicines
recommended for use by the National Institute for Health and Care
Excellence.”

EARL HOWE

148

Page 73, line 14, at end insert—

“(13)   Consultation undertaken before the commencement of this section
is as effective for the purposes of subsection (9) as consultation
undertaken after that commencement.”

149

Page 73, line 16, at end insert—

“( )   In section 48 (special reviews and investigations), in subsection (1)—

(a)   omit “, with the approval of the Secretary of State,”, and

(b)   at the end insert “; but the Commission may not conduct a review
or investigation under subsection (2)(ba) or (bb) without the
approval of the Secretary of State.”

( )   Omit subsection (1A) of that section.

( )   In subsection (2) of that section, for “a periodic review” substitute “a review
under section 46”.

( )   In that subsection, after paragraph (ba) (but before the following “or”)
insert—

“(bb)   the exercise of the functions of English local authorities in
arranging for the provision of adult social services,”.

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

“(3A)    A review or investigation under subsection (2)(b), in so far as it
involves a review or investigation into the arrangements made for
the provision of the adult social services in question, is to be treated
as a review under subsection (2)(bb) (and the requirement for
approval under subsection (1) is accordingly to apply).””

150

Page 73, line 25, at end insert—

“( )   in section 293 of the Health and Social Care Act 2012, omit
subsections (1) and (2);”

After Clause 83

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

151

Insert the following new Clause—

“Periodic reviews and assessments of standards of employment and impact of
quality of care

The Commission shall have a duty to carry out periodic reviews and
assessments of standards of employment in health and social care
provision with particular emphasis on workforce conditions which
support continuity and quality of care, and are consistent with the
wellbeing principle as set out in section 1.”

Before Clause 84

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

BARONESS MASHAM OF ILTON

152

Insert the following new Clause—

“Duty of candour

(1)   Every organisation registered with the Care Quality Commission to
provide health or social care services must be honest, open and truthful in
all their dealing with patients and the public.

(2)   Organisational interests of those so registered must never be allowed to
outweigh the duty to be honest, open and truthful.

(3)   Where death or serious harm has been or may have been caused to a patient
by an act or omission of the organisation or its staff, the patient or any
lawfully entitled personal representative or other authorised person
should be—

(a)   informed of the incident;

(b)   given full disclosure of the surrounding circumstances; and

(c)   be offered an appropriate level of support,

whether or not the patient or representative has asked for this
information.”

Clause 84

EARL HOWE

152A

Page 73, line 42, leave out “exercises functions in connection with the provision of”
and insert “provides”

152B

Page 74, line 1, leave out “body (other than a public body) which” and insert
“person who”

152C

Page 74, line 4, at end insert “, or

(c)   a person who provides health services or adult social care in
England all or part of the cost of which is paid for by means of a
direct payment under section 12A of the National Health Service
Act 2006 or under Part 1 of this Act.”

Clause 85

EARL HOWE

152D

Page 74, line 35, leave out “care provider” and insert “person”

152E

Page 74, line 35, leave out from “liable” to end of line 36 and insert “—

(a)   on summary conviction, to a fine;

(b)   on conviction on indictment, to imprisonment for not more than
two years or a fine (or both).”

After Clause 85

EARL HOWE

152F

Insert the following new Clause—

“Offences by bodies

(1)   Subsection (2) applies where an offence under section 84(1) is committed
by a body corporate and it is proved that the offence is committed by, or
with the consent or connivance of, or is attributable to neglect on the part
of—

(a)   a director, manager or secretary of the body, or

(b)   a person purporting to act in such a capacity.

(2)   The director, manager, secretary or person purporting to act as such (as
well as the body) is guilty of the offence and liable to be proceeded against
and punished accordingly (but section 85(2) does not apply).

(3)   The reference in subsection (2) to a director, manager or secretary of a body
corporate includes a reference—

(a)   to any other similar officer of the body, and

(b)   where the body is a local authority, to a member of the authority.

(4)   Proceedings for an offence under section 84(1) alleged to have been
committed by an unincorporated association are to be brought in the name
of the association (and not in that of any of the members); and rules of court
relating to the service of documents have effect as if the unincorporated
association were a body corporate.

(5)   In proceedings for an offence under section 84(1) brought against an
unincorporated association, section 33 of the Criminal Justice Act 1925 and
Schedule 3 to the Magistrates’ Courts Act 1980 apply as they apply in
relation to a body corporate.

(6)   A fine imposed on an unincorporated association on its conviction for an
offence under section 84(1) is to be paid out of the funds of the association.

(7)   Subsection (8) applies if an offence under section 84(1) is proved—

(a)   to have been committed by, or with the consent or connivance of, an
officer of the association or a member of its governing body, or

(b)   to be attributable to neglect on the part of such an officer or
member.

(8)   The officer or member (as well as the association) is guilty of the offence
and liable to be proceeded against accordingly (but section 85(2) does not
apply).”

153

Insert the following new Clause—

“Training for persons working in regulated activity

In section 20 of the Health and Social Care Act 2008 (regulation of regulated
activities), after subsection (4) insert—

“(4A)    Regulations made under this section by virtue of subsection (3)(d)
may in particular include provision for a specified person to set the
standards which persons undergoing the training in question must
attain.””

Schedule 5

EARL HOWE

154

Page 112, line 6, at end insert—

“(0 )   The non-executive members of HEE must include a person who will
represent the interests of patients.”

155

Page 114, line 33, at end insert—

“(1A)    HEE may arrange for any of its committees, sub-committees or members
or any other person to exercise any of its functions on its behalf (but see
sub-paragraph (4)).”

156

Page 114, line 36, after “sub-paragraph” insert “(1A) or”

157

Page 115, line 1, after “LETB” insert “, or for a sub-committee, member or any other
person,”

After Clause 89

LORD WILLIS OF KNARESBOROUGH

BARONESS EMERTON

LORD PATEL

LORD WARNER

158

Insert the following new Clause—

“Mandatory training and certification for health and care support workers and
nursing assistants

(1)   HEE must develop a mandatory training curriculum and certification
standards, with two levels, for health and care support workers who are
delivering direct care to service users and for nursing assistants.

(2)   For the purposes of subsection (1), a health or care support worker shall be
an individual who works in support of health or care professionals and
delivers direct care to service users.

(3)   The training curriculum, under subsection (1), will have—

(a)   a basic level; and

(b)   an advanced level,

of certification in health and care standards.

(4)   Providers of health or care services must be reponsible for ensuring that all
health and care support workers hold a certificate in health and care
standards.

(5)   Any individual working directly with patients or clients must have
completed training and hold, at least, a basic level certificate in health and
care standards.

(6)   A nursing assistant must have completed training and hold an advanced
level certificate in health and care standards.

(7)   The training curriculum and certification standards set out in subsection (1)
will be set by the Nursing and Midwifery Council and approved by HEE.

(8)   Employers must retain a register of individuals who hold any certificate in
health and care standards.

(9)   It is an offfence for any employer to employ—

(a)   an individual to work directly with patients or clients who is not
registered as holding at least a basic level certificate in health and
care standards; or

(b)   a nursing assistant who is not registered as holding an advanced
level certificate in health and care standards.”

159

Insert the following new Clause—

“Safeguarding patients

(1)   The first duty that a health or care service provider must consider for any
decision is patient safety.

(2)   Health or care service providers must publish a report containing staffing
levels based on evidence of safe staffing levels supported by acuity and
dependency levels for each patient.

(3)   The report must relate safe staffing levels to patient outcomes and
mortality rates.

(4)   The report must be presented to the hospital management board or any
other relevant board of management.

(5)   The frequency of the report will be determined by the Secretary of State.

(6)   The Care Quality Commission or Monitor will be able to request to see the
report, under subsection (2), at any time.”

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

160

Insert the following new Clause—

“Regulation of health and care support workers

(1)   The Secretary of State shall, by regulations and in consultation with the
Care Quality Commission, HEE and such other persons as it considers
appropriate, ensure the establishment of a system of regulation of health
and care support workers.

(2)   For the purpose of subsection (1), a health or care support worker shall be
an individual who works in support of health or care professionals and
delivers direct care to service users.”

Clause 91

LORD ABERDARE

160A

Page 78, line 43, at end insert—

“( )   the needs of patients to have their conditions diagnosed promptly,”

Clause 93

EARL HOWE

161

Page 80, line 5, at end insert—

“( )   Subsections (1), (2) and (4) of section 89 (quality improvement in education
and training etc.) apply to an LETB in the exercise of its functions as they
apply to HEE in the exercise of its functions.”

Clause 94

EARL HOWE

162

Page 80, line 23, at end insert “, and

( )   a person who will represent the interests of patients.”

163

Page 80, line 24, leave out “The regulations” and insert “Regulations under
paragraph (b) of subsection (3)”

164

Page 80, line 24, leave out “that expertise” and insert “the expertise mentioned in
that paragraph”

Schedule 7

EARL HOWE

165

Page 126, line 36, after “any” insert “of its committees, sub-committees or members
or any other”

Clause 100

EARL HOWE

166

Page 85, line 12, leave out “such research” and insert “research that is safe and
ethical (including by promoting transparency in research)”

167

Page 85, line 25, at end insert—

“( )   Promoting transparency in research includes promoting—

(a)   the registration of research;

(b)   the publication and dissemination of research findings and
conclusions;

(c)   the provision of access to data on which research findings or
conclusions are based;

(d)   the provision of information at the end of research to participants in
the research;

(e)   the provision of access to tissue used in research, for use in future
research.”

Schedule 8

EARL HOWE

168

Page 132, line 45, leave out from second “a” to end of line 3 on page 133 and insert
“research ethics committee recognised or established by or on behalf of the Health
Research Authority under the Care Act 2013.”

Clause 112

EARL HOWE

169

Page 92, line 25, leave out “or duty”

Clause 114

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

169A*

Page 94, line 20, after “Part” insert “and section “(Trust special administration:
measures required before powers take effect
)”

EARL HOWE

170

Page 94, line 23, after “cases)” insert “or 71 (after-care under the Mental Health Act
1983)”.

Prepared 19th October 2013