Care Bill [HL]

House of Lords

Session 2013 - 14
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Other Bills before Parliament

Care Bill [HL]

Care Bill [HL]
Part 1 — Care and support
71

General
79
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.
5

Expression
Provision

Abuse
Section 42(3)

Accrued costs
Section 15(5)

Adult
Section 2(8)

Adult needing care
Section 10(3)

10

Authority under the Mental Capacity Act 2005
Subsection (3) below

Best interests
Subsection (2) below

Cap on care costs
Section 15(4)

Capacity, having or lacking
Subsection (2) below

Care and support plan
Section 25

15

Care account
Section 29

Carer (other than in sections 59 to 65)
Section 10(3)

Carer’s assessment
Sections 10(2) and 12(8) and (9)

Daily living costs, amount attributable to
Section 15(8)

Deferred payment agreement
Section 34

20

Direct payment
Sections 31 and 32

Eligibility criteria
Section 13

Financial assessment
Section 17(5)

Financial limit
Section 17(10)

Financial year
Section 122

25

The health service
Section 122

Independent personal budget
Section 28

Local authority
Section 1(4)

Needs assessment
Sections 9(2) and 12(8) and (9)

Personal budget
Section 26

30

Registered care provider
Section 49

Care Bill [HL]
Part 2 — Care standards
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Expression
Provision

Support plan
Section 25

Well-being
Section 1(2)

(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.
5
(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)
a 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.
10
Part 2
Care standards
Quality of services
80
Duty of candour
In section 20 of the Health and Social Care Act 2008 (regulation of regulated
15
activities), after subsection (5) insert—
“(5A)
Regulations under this section must make provision as to the provision
of information in a case where an incident of a specified description
affecting a person’s safety occurs in the course of the person being
provided with a service.”
20
81
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
trust established under section 25 of the National Health Service Act
25
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
Warning notice: quality of health care
30
(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)
A warning notice under this section is a notice in writing—
35
(a)
stating that the Commission has formed the view that the
quality of health care provided by the trust requires significant
improvement,

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Part 2 — Care standards
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(b)
specifying the health care concerned,
(c)
giving 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
5
requirement under subsection (2)(d), it may specify different times for
different 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
10
requirement has been complied with;
(b)
where 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
15
Commission is satisfied that a requirement to which the notice relates
has 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
20
order under section 65D(2) of the National Health Service Act
2006 (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
25
First-tier tribunal),
(b)
section 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
30
enforcement action), for “section 29” substitute “sections 29 and 29A”.
82
Imposition 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.
35
(2)
After subsection (2) insert—
“(2A)
Where 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.”
40
(3)
In subsections (3) to (5) and (7) to (9), after “subsection (1)” in each place it
appears insert “or (2A)”.

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Part 2 — Care standards
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83
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
5
(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
order under subsection (2).”
10
(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
provided under this Act and that it is appropriate to make an
15
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)
requires the regulator to make an order under subsection (2).”
20
(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
Care Quality Commission must—
25
(a)
consult the Secretary of State and the regulator, and
(b)
having done that, consult—
(i)
the trust,
(ii)
the Board, and
(iii)
any other person to which the trust provides services
30
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)
In section 65N of that Act (guidance for trust special administrators), after
35
subsection (3) insert—
“(3A)
Before publishing guidance under this section, the Secretary of State
must consult the Care Quality Commission.”
(7)
In subsection (4) of that section, for “the reference in subsection (1) to the
Secretary of State is to be read as a reference” substitute “the references in
40
subsections (1) and (3A) to the Secretary of State are to be read as references”.
(8)
In paragraph 24 of Schedule 14 to the Health and Social Care Act 2012
(abolition of NHS trusts in England: consequential amendments to section 65N

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of the National Health Service Act 2006), after sub-paragraph (2) insert—
   “(2A)
In subsection (3A), for “the Secretary of State” substitute “the
regulator”.”
84
Trust special administration: objective, consultation and reports
(1)
In section 65DA of the National Health Service Act 2006 (objective of trust
5
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
to be provided under this Act,”.
10
(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)
omit the “and” preceding paragraph (b), and
15
(b)
after that paragraph insert “, and
(c)
the Care Quality Commission.”
(4)
In subsection (5) of that section, in paragraph (a), for “65DA” substitute
“65DA(1)(a)”.
(5)
After that subsection insert—
20
“(5A)
Nor, in the case of an NHS foundation trust, 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 section 65DA(1)(aa).”
25
(6)
In subsection (6) 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 (5)
or (5A)”, and
(c)
after “, the Board” insert “or (as the case may be) the Commission”.
30
(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
following the consultation period without having obtained from the
35
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)
after “Where the Board” insert “or the Care Quality Commission”,
40
(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”.

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(10)
In section 65H of that Act (consultation requirements)—
(a)
in 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
5
decision), in subsection (1), after paragraph (c) insert—
“(ca)
that 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”.
10
(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
discharge a function—
15
(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
accordingly).”
20
(15)
In paragraph 15(4) of Schedule 14 to the Health and Social Care Act 2012
(abolition of NHS trusts in England: consequential amendments to section 65F
of the National Health Service Act 2006)—
(a)
in the new subsection (2A) to be inserted by paragraph 15(4), in
paragraph (a), for “65DA” substitute “65DA(1)(a)”,
25
(b)
after that new 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
30
of the objective set out in section 65DA(1)(aa).”, and
(c)
in the new subsection (2B) to be inserted by paragraph 15(4)—
(i)
after “Where the Board” insert “or the Care Quality
Commission”,
(ii)
for “to that effect” substitute “to the effect mentioned in
35
subsection (2A) or (2AA)”, and
(iii)
after “, the Board” insert “or (as the case may be) the
Commission”.
Care Quality Commission
85
Restriction on applications for variation or removal of conditions
40
(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
conditions, etc.) is amended as follows.

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(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
where either subsection (3B) or (3C) applies.
5
(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)
the Commission has not decided not to take that step.
10
(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)
either the time within which an appeal may be brought has not
15
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)
This subsection applies where—
20
(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)
the Commission has given R notice under section 28(3) of its
25
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
30
under section 19(1)(a) of the Health and Social Care Act 2008 before the day on
which those amendments come into force.
86
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)—
35
(a)
after 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
40
under 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