Health and Care Bill (HL Bill 71)

A

BILL

TO

Make provision about health and social care.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Health service in England: integration, collaboration and other changes

NHS England

1 NHS Commissioning Board renamed NHS England

(1)5The National Health Service Commissioning Board is renamed NHS England.

(2)Schedule 1 contains consequential amendments.

2 Power to require commissioning of specialised services

(1)Section 3B of the National Health Service Act 2006 (Secretary of State’s power
to require commissioning of services) is amended as follows.

(2)10For subsection (2) substitute—

(2)A service or facility may be prescribed under subsection (1)(d) only if
the Secretary of State considers that it would be appropriate for NHS
England to arrange for the provision of that service or facility (whether
by NHS England making arrangements itself or by giving directions
15under section 13YB or making arrangements under section 65Z5).”

(3)In subsection (3), omit paragraph (d).

(4)After subsection (4) insert—

(4A)If the Secretary of State refuses a request by NHS England to revoke
provision made by regulations under subsection (1)(d) prescribing a

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service or facility, the Secretary of State must explain why to NHS
England.”

3 NHS England mandate: general

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

(2)5In section 13A (mandate)—

(a)in subsection (1), omit “Before the start of each financial year,”;

(b)in subsection (2), in paragraph (a), omit from “during that financial
year” to the end of that paragraph (but not the final “and”);

(c)omit subsections (3) and (4);

(d)10in subsection (5), omit “in relation to the first financial year to which the
mandate relates”;

(e)after subsection (6) insert—

(6A)The Secretary of State may revise the mandate.

(6B)If the Secretary of State revises the mandate, the Secretary of
15State must publish and lay before Parliament the mandate as
revised.”

(3)In section 13B (the mandate: supplementary provision)—

(a)for the heading substitute “Review of NHS England’s performance in
implementing the mandate”;

(b)20omit subsections (2) to (5).

(4)In section 13T (business plan)—

(a)in subsection (3), omit “for the first financial year to which the plan
relates”;

(b)after subsection (3) insert—

(3A)25The fact that the mandate is revised during the period to which
a business plan relates does not require NHS England to revise
the plan.”

(5)In section 13U (annual report), in subsection (2), for paragraph (a) substitute—

(a)the extent to which, in that year, it met any objectives or
30requirements specified in the mandate,”.

4 NHS England mandate: cancer outcome targets

(1)Section 13A of the National Health Service Act 2006 (mandate) is amended in
accordance with subsection (2).

(2)After subsection (2), insert the following new subsection—

(2A)35The objectives that the Secretary of State considers NHS England
should seek to achieve which are specified in subsection (2)(a) must
include objectives for cancer treatment defined by outcomes for
patients with cancer, and those objectives are to be treated by NHS
England as having priority over any other objectives relating to cancer
40treatment.”

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5 NHS England: wider effect of decisions

After section 13N of the National Health Service Act 2006 insert—

“Duty to have regard to wider effect of decisions
13NA Duty to have regard to wider effect of decisions

(1)5In making a decision about the exercise of its functions, NHS England
must have regard to all likely effects of the decision in relation to—

(a)the health and well-being of the people of England;

(b)the quality of services provided to individuals—

(i)by relevant bodies, or

(ii)10in pursuance of arrangements made by relevant bodies,

for or in connection with the prevention, diagnosis or treatment
of illness, as part of the health service in England;

(c)efficiency and sustainability in relation to the use of resources
by relevant bodies for the purposes of the health service in
15England.

(2)The reference in subsection (1) to a decision does not include a reference
to a decision about the services to be provided to a particular individual
for or in connection with the prevention, diagnosis or treatment of
illness.

(3)20In discharging the duty under this section, NHS England must have
regard to guidance published by it under section 13NB.

(4)In this section “relevant bodies” means—

(a)NHS England,

(b)integrated care boards,

(c)25NHS trusts established under section 25, and

(d)NHS foundation trusts.

13NB Guidance about discharge of duty

(1)NHS England may publish guidance about the discharge of—

(a)the duty imposed on it by section 13NA;

(b)30the duty imposed on integrated care boards by section 14Z43;

(c)the duty imposed on NHS trusts by section 26A;

(d)the duty imposed on NHS foundation trusts by section 63A.

(2)NHS England must consult any persons NHS England considers it
appropriate to consult—

(a)35before first publishing guidance under this section, and

(b)before publishing any revised guidance containing changes that
are, in the opinion of NHS England, significant.”

6 Public involvement: carers and representatives

In section 13Q of the National Health Service Act 2006 (public involvement and
40consultation), in subsection (2), after “individuals to whom the services are
being or may be provided” insert “, and their carers and representatives (if
any),”.

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7 Support and assistance by NHS England

After section 13Y of the National Health Service Act 2006 insert—

“Assistance and support
13YA Power of NHS England to provide assistance and support

(1)5NHS England may provide assistance or support to—

(a)any person providing or proposing to provide services as part
of the health service;

(b)any person, not within paragraph (a), exercising functions in
relation to the health service.

(2)10The assistance that may be provided under subsection (1)(a) or (b)
includes making available the services of NHS England’s employees or
any other resources of NHS England.

(3)The assistance that may be provided under subsection (1)(a), or that
may be provided under subsection (1)(b) to integrated care boards, also
15includes financial assistance.

(4)Assistance or support provided under this section may be provided on
such terms, including terms as to payment, as NHS England considers
appropriate.”

8 Exercise of functions relating to provision of services

(1)20The National Health Services Act 2006 is amended as follows.

(2)After section 13YA (inserted by section 7 of this Act) insert—

“Discharge of functions
13YB Directions in respect of functions relating to provision of services

(1)NHS England may by direction provide for any of its relevant functions
25to be exercised by one or more integrated care boards.

(2)In this section “relevant function” means—

(a)any function of NHS England under section 3B(1)
(commissioning functions);

(b)any function of NHS England, not within paragraph (a), that
30relates to the provision of—

(i)primary medical services,

(ii)primary dental services,

(iii)primary ophthalmic services, or

(iv)services that may be provided as pharmaceutical
35services, or as local pharmaceutical services, under
Part 7;

(c)any function of NHS England by virtue of section 7A or 7B
(exercise of Secretary of State’s public health functions);

(d)any other functions of NHS England so far as exercisable in
40connection with any functions within paragraphs (a) to (c).

(3)Regulations may—

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(a)provide that the power in subsection (1) does not apply, or
applies only to a prescribed extent, in relation to a prescribed
function;

(b)impose conditions on the exercise of the power.

(4)5A direction under subsection (1) may include provision prohibiting or
restricting the integrated care board from making delegation
arrangements in relation to a function that is exercisable by it by virtue
of the direction.

(5)In subsection (4) “delegation arrangements” means arrangements
10made by a person for the exercise of a function by someone else.

(6)NHS England may make payments to an integrated care board in
respect of the exercise by it of a function by virtue of a direction under
subsection (1).

(7)NHS England may give directions to an integrated care board as to the
15exercise by it of any functions in pursuance of a direction under
subsection (1).

(8)As soon as reasonably practicable after giving a direction under
subsection (1), NHS England must publish it.

(9)Any rights acquired, or liabilities (including liabilities in tort) incurred,
20in respect of the exercise by an integrated care board of any function by
virtue of this section are enforceable by or against it (and no other
person).”

(3)In section 73 (directions and regulations under Part 2), in subsection (1), after
paragraph (b) insert—

(ba)25section 13YB,”.

9 Preparation of consolidated accounts for providers

Before section 66 of the National Health Service Act 2006 (and the italic heading
before it) insert—

“Consolidated accounts
65Z4 30 Consolidated accounts for NHS trusts and NHS foundation trusts

(1)NHS England must, in respect of each financial year, prepare a set of
accounts that consolidates the annual accounts of—

(a)all NHS trusts established under section 25, and

(b)all NHS foundation trusts.

(2)35The Secretary of State may give NHS England directions as to—

(a)the content and form of the consolidated accounts, and

(b)the methods and principles to be applied in preparing them.

(3)NHS England must, within such period as the Secretary of State may
direct, send a copy of the consolidated accounts to—

(a)40the Secretary of State, and

(b)the Comptroller and Auditor General.

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(4)The accounts must be accompanied by such reports or other
information as the Secretary of State may direct.

(5)The Comptroller and Auditor General must—

(a)examine, certify and report on the consolidated accounts, and

(b)5send a copy of the report to the Secretary of State and NHS
England.

(6)NHS England must lay before Parliament a copy of—

(a)the consolidated accounts, and

(b)the Comptroller and Auditor General’s report on them.”

10 10Funding for service integration

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

(2)In section 223B (funding of NHS England)—

(a)for subsection (6) substitute—

(6)The Secretary of State may direct NHS England—

(a)15that an amount of the sums paid to it under this section
in respect of a financial year is to be used for purposes
relating to service integration;

(b)about the use by NHS England of that amount for those
purposes.”;

(b)20in subsection (7)—

(i)for “subsection (6)” substitute “subsection (6)(a)”;

(ii)in paragraph (b), for “mandate” substitute “direction”;

(c)after subsection (7) insert—

(7A)The power under subsection (6)(b) includes power to give NHS
25England directions about the exercise of any of its functions
under or by virtue of section 223GA (including directions
requiring consultation with the Secretary of State or other
specified persons).

(7B)The Secretary of State must publish any direction under
30subsection (6).”

(3)In section 223GA (expenditure on integration)—

(a)for subsections (1) and (2) substitute—

(1)Where the Secretary of State has given NHS England a direction
under section 223B(6)(a) about sums paid to it in respect of a
35financial year, NHS England may direct an integrated care
board that an amount (a “designated amount”) of the sums paid
to the board under section 223G in respect of that year is to be
used for purposes relating to service integration.

(2)The designated amount—

(a)40is to be determined in such manner as NHS England
considers appropriate, and

(b)must be specified in the direction under subsection (1).”;

(b)in subsection (6), for paragraph (a) (but not the “and” at the end)

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substitute—

(a)it may use the amount for any purposes relating to
service integration,”;

(c)omit subsection (7).

11 5Payments in respect of quality

In section 223K of the National Health Service Act 2006, omit subsections (4)
and (5) (power of Secretary of State to make regulations about payments by
NHS England in respect of quality).

12 Secondments to NHS England

(1)10The National Health Service Act 2006 is amended as follows.

(2)In section 272 (orders, regulations, rules and directions), in subsection (6)—

(a)omit the “or” at the end of paragraph (b);

(b)after paragraph (c) insert—

(d)regulations under paragraph 9A(5) of Schedule A1, or”.

(3)15In Schedule A1 (constitution of NHS England), after paragraph 9 insert—

9A(1)NHS England may make arrangements for a person to be seconded
to NHS England to serve as a member of NHS England’s staff.

(2)A period of secondment to NHS England does not affect the
continuity of a person’s employment with the employer from whose
20service the person is seconded.

(3)In paragraphs 9, 10, and 13 a reference to an employee of NHS
England includes a person seconded to NHS England.

(4)In paragraph 3(3) the reference to an employee of NHS England
includes any of the following seconded to NHS England—

(a)25a person employed in the civil service of the State, or

(b)a person employed by—

(i)an integrated care board,

(ii)an NHS trust established under section 25,

(iii)an NHS foundation trust,

(iv)30a Special Health Authority performing functions only
or mainly in respect of England,

(v)the Care Quality Commission,

(vi)the Health and Social Care Information Centre,

(vii)the Health Services Safety Investigations Body,

(viii)35the Human Tissue Authority,

(ix)the Human Fertilisation and Embryology Authority,
or

(x)NICE.

(5)The Secretary of State may by regulations amend this paragraph so
40as to provide that other references in this Act to an employee of NHS
England include persons, or persons of a prescribed description,
seconded to NHS England.”

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Integrated care boards

13 Role of integrated care boards

For section 1I of the National Health Service Act 2006 and the italic heading
before it substitute—

5“Role of integrated care boards in the health service in England
1I General functions of integrated care boards

An integrated care board established under Chapter A3 of Part 2 has
the function of arranging for the provision of services for the purposes
of the health service in England in accordance with this Act.”

14 10Establishment of integrated care boards

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

(2)In Part 2, after Chapter A2 insert—

“Chapter A3 Integrated care boards
15Establishment of integrated care boards (including by re-purposing clinical
commissioning groups)
14Z25 Duty to establish integrated care boards

(1)NHS England must establish bodies called integrated care boards in
accordance with this Chapter.

(2)20Each integrated care board is to be established by order made by NHS
England for an area within England.

(3)The area for which an integrated care board is established must not
coincide or overlap with the area of any other integrated care board.

(4)NHS England must ensure that, at all times on and after the appointed
25day, the areas of integrated care boards together cover the whole of
England.

(5)An order establishing an integrated care board must provide for the
constitution of the board, either by setting out the constitution or by
making provision by reference to a published document where it is set
30out.

(6)In Schedule 1B—

(a)Part 1 is about the constitution of an integrated care board
(including its area);

(b)Part 2 is about the status and powers of an integrated care board
35and its accounts.

(7)Before varying or revoking an order under this section NHS England
must consult any integrated care board that it considers likely to be
affected.

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(8)NHS England must publish orders under this section.

(9)In this section “the appointed day” means a day appointed under this
subsection by regulations made by the Secretary of State.

14Z26 Process for establishing initial integrated care boards

(1)5NHS England must publish a list of the initial areas for which
integrated care boards are to be established (each of which is referred
to in this section as an “initial area”).

(2)The relevant clinical commissioning group or groups for an initial area
must propose the constitution of the first integrated care board to be
10established for that area.

(3)Before making a proposal under subsection (2), the relevant clinical
commissioning group or groups must consult any persons they
consider it appropriate to consult (and it is immaterial for this purpose
whether the consultation is carried out before or after this section
15comes into force).

(4)When establishing the first integrated care board under section 14Z25
for an initial area, NHS England must give effect to any proposal under
subsection (2) unless it considers that—

(a)the proposal is inappropriate, or

(b)20the relevant clinical commissioning group or groups have not
carried out an appropriate consultation under subsection (3),

and in that case NHS England must determine the terms of the
constitution itself.

(5)Nothing in this section—

(a)25prevents NHS England from establishing the first integrated
care board for an initial area in a case where the relevant clinical
commissioning group or groups have failed within a reasonable
period to make a proposal under subsection (2), or

(b)limits the re-exercise of the power in section 14Z25.

(6)30NHS England may publish guidance for clinical commissioning groups
about the exercise of their functions under this section.

(7)A clinical commissioning group must have regard to guidance
published under this section.

(8)In this section “the relevant clinical commissioning group or groups”
35means—

(a)in relation to an area that coincides with the area of a clinical
commissioning group, that group;

(b)in relation to an area that includes the whole or part of the area
of more than one clinical commissioning group, those groups
40acting jointly.

14Z27 Abolition of clinical commissioning groups

(1)Any clinical commissioning group in existence immediately before the
appointed day is abolished at the beginning of that day.

(2)In this section “the appointed day” has the same meaning as in section
4514Z25.