Health and Care Bill (HL Bill 71)

Part 1 continued    

(3)A relevant NHS body must have regard to guidance published under
this section.

(4)NHS England must consult such persons as NHS England considers
appropriate—

(a)5before it first publishes guidance under this section, and

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

(5)In this section—

• “local authority” has the same meaning as in section 2B;

• 10“relevant NHS body” means—

  (a)

  a relevant NHS commissioner;

  (b)

  a relevant NHS provider;

• “relevant NHS commissioner” means—

  (a)

  NHS England;

  (b)

  15an integrated care board;

• “relevant NHS provider” means—

  (a)

  an NHS trust established under section 25;

  (b)

  an NHS foundation trust.”

66 Co-operation by NHS bodies etc

(1)20The National Health Service Act 2006 is amended in accordance with
subsections (2) and (3).

(2)In section 72 (co-operation between NHS bodies)—

(a)after subsection (1) insert—

“(1A)The Secretary of State may publish guidance on the discharge of
25the duty under subsection (1) in relation to England.

(1B)An NHS body other than a Welsh NHS body must have regard
to any guidance published under subsection (1A).”;

(b)after subsection (4) insert—

“(5)In this section “Welsh NHS body” means—

(a)30an NHS trust established under the National Health
Service (Wales) Act 2006,

(b)a Special Health Authority established under that Act,
or

(c)a Local Health Board.”

(3)35In section 82 (co-operation between NHS bodies and local authorities)—

(a)the existing words become subsection (1);

(b)after that subsection insert—

“(2)The Secretary of State may publish guidance on the discharge of
the duty under this section in relation to England.

(3)40The following must have regard to any guidance published
under subsection (2)—

(a)an NHS body other than a Welsh NHS body;

(b)a local authority in England.

(4)In this section “Welsh NHS body” means—

(a)an NHS trust established under the National Health
Service (Wales) Act 2006,

(b)a Special Health Authority established under that Act,
5or

(c)a Local Health Board.”

(4)In the Health and Social Care Act 2012, in section 96 (limits on functions to set
or modify licence conditions)—

(a)in subsection (2), for paragraph (g) substitute—

“(g)10for the purpose of enabling, promoting or securing co-
operation between providers of health care services for
the purposes of the NHS, or between such providers
and—

(i)NHS bodies, within the meaning of section 72 of
15the National Health Service Act 2006, or

(ii)local authorities in England (and for this
purpose “local authority” has the meaning given
by section 275(1) of the National Health Service
Act 2006);”;

(b)20in subsection (3), in the words before paragraph (a), for “(f) and (g)”
substitute “and (f)”.

67 Wider effect of decisions: licensing of health care providers

In section 96 of the Health and Social Care Act 2012 (limits on functions to set
or modify licence conditions)—

(a)25in subsection (2), after paragraph (d) insert—

“(da)for the purpose of ensuring that decisions relating to the
provision of health care services for the purposes of the
NHS are made with regard to all their likely effects in
relation to the matters referred to in subsection (2A);”;

(b)30after subsection (2) insert—

“(2A)The matters referred to in subsection (2)(da) are—

(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)35in 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)40efficiency and sustainability in relation to the use of
resources by relevant bodies for the purposes of the
health service in England.

(2B)In subsection (2A) “relevant bodies” means—

(a)NHS England,

(b)45integrated care boards,

(c)NHS trusts established under section 25, and

(d)NHS foundation trusts.”

NHS payment scheme

68 The NHS payment scheme

Schedule 10—

(a)replaces the national tariff with the NHS payment scheme, and

(b)5makes provision relating to the NHS payment scheme.

Patient choice and provider selection

69 Regulations as to patient choice

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

(2)In section 6E (standing rules)—

(a)10in subsection (1)—

(i)for “may” substitute “must”;

(ii)for “or” substitute “and”;

(b)after subsection (1) insert—

“(1A)The regulations must make provision as to the arrangements
15that NHS England and integrated care boards must make, in
exercising their commissioning functions, for enabling persons
to whom specified treatments or other specified services are to
be provided to make choices with respect to specified aspects of
them.

(1B)20The regulations may make other provision for the purpose of
securing that, in exercising their commissioning functions, NHS
England and integrated care boards protect and promote the
rights of persons to make choices in relation to treatments or
other services, where those rights—

(a)25arise by virtue of regulations under subsection (1A), or

(b)are described in the NHS Constitution.”;

(c)omit subsection (2)(c).

(3)After section 6E insert—

“6F Enforcement of section 6E regulations relating to patient choice

(1)30NHS England may investigate whether an integrated care board has
failed or is likely to fail to comply with a requirement imposed by
regulations under section 6E(1A) or (1B) (a “patient choice
requirement”).

(2)NHS England may direct an integrated care board—

(a)35to put in place measures for the purpose of preventing failures
to comply with patient choice requirements or mitigating the
effect of such failures, or

(b)where an investigation under subsection (1) has been carried
out, to remedy a failure to comply with patient choice
40requirements.

(3)Where an investigation under subsection (1) is being or has been
carried out, NHS England may accept from the integrated care board

an undertaking that it will take any action falling within subsection
(2)(a) or (b) that is specified in the undertaking, within a period that is
so specified.

(4)Where NHS England accepts an undertaking under subsection (3),
5NHS England may not—

(a)continue to carry out any ongoing investigation under
subsection (1) so far as relating to matters to which the
undertaking relates, or

(b)give a direction under subsection (2) in relation to those matters,

10unless the integrated care board fails to comply with the undertaking.

(5)If an integrated care board from which NHS England has accepted an
undertaking under subsection (3) complies partially with the
undertaking, NHS England must take the partial compliance into
account in deciding whether to do something mentioned in subsection
15(4)(a) or (b).

(6)Schedule 1ZA makes further provision about undertakings.

6G Guidance relating to patient choice

(1)NHS England must publish guidance about how it intends to exercise
powers conferred on it by section 6F and Schedule 1ZA.

(2)20Before publishing guidance under this section, NHS England must
obtain the approval of the Secretary of State.”

(4)In section 13U (annual report), in subsection (2)(c), for the words from
“sections” to the end substitute “or by virtue of—

(i)section 6E(1A) and (1B);

(ii)25section 13E;

(iii)section 13G;

(iv)section 13I;

(v)section 13Q.”

(5)Schedule 11 inserts into the National Health Service Act 2006 a new Schedule
301ZA (undertakings by integrated care boards).

70 Procurement regulations

After section 12ZA of the National Health Service Act 2006 insert—

“Procurement

12ZB Procurement regulations

(1)35Regulations may make provision in relation to the procurement by
relevant authorities of—

(a)health care services for the purposes of the health service in
England, and

(b)other goods or services that are procured together with those
40health care services.

(2)The regulations may, in particular, make provision in relation to—

(a)general objectives of procurement;

(b)procurement processes.

(3)The regulations may, in particular, make provision for the purposes
of—

(a)ensuring transparency or fairness in relation to procurement,

(b)5ensuring that compliance can be verified, or

(c)managing conflicts of interest.

(4)NHS England may publish guidance about compliance with
requirements imposed by the regulations.

(5)A relevant authority must have regard to guidance published under
10this section.

(6)Before publishing guidance under this section, NHS England must
obtain the approval of the Secretary of State.

(7)In this section—

• “health care service” has the same meaning as in Part 3 of the
  15Health and Social Care Act 2012 (see section 150 of that Act);

• “relevant authority” means—

  (a)

  a combined authority;

  (b)

  an integrated care board;

  (c)

  a local authority in England;

  (d)

  20NHS England;

  (e)

  an NHS foundation trust;

  (f)

  an NHS trust established under section 25.”

71 Procurement and patient choice: consequential amendments etc

(2)The functions mentioned in this subsection are the functions of the
Secretary of State under—

(a)section 6E;

(b)30section 12ZB;

(c)section 13A.”

(2)Omit sections 75 to 78 of, and Schedule 9 to, the Health and Social Care Act
2012 (regulations etc relating to procurement, patient choice and competition).

(3)In section 40 of the Small Business, Enterprise and Employment Act 2015
35(investigation of procurement functions), in subsection (7), omit paragraph (b)
and the “or” before it.

(4)The National Health Service (Procurement, Patient Choice and Competition)
(No. 2) Regulations 2013 (S.I. 2013/500) are revoked.

Competition

72 40Duty to provide assistance to the CMA

(1)After section 13SA of the National Health Service Act 2006 (inserted by section

29(2) of this Act) insert—

“13SB Provision of regulatory information or assistance to the CMA

(1)NHS England must give the Competition and Markets Authority (“the
CMA”)—

(a)5any regulatory information that the CMA may require to enable
the CMA to exercise its relevant functions,

(b)any other regulatory information it considers would assist the
CMA in exercising its relevant functions, and

(c)any other assistance the CMA may require to assist the CMA in
10exercising its relevant functions.

(2)In this section—

• “regulatory information” means information held by NHS
  England in connection with—

  (a)

  its regulatory functions falling within section 13SA(2)(a)
  15or (b), or

  (b)

  its functions under—

  (i)

  sections 6F and Schedule 1ZA (patient choice:
  enforcement);

  (ii)

  sections 27A and 27C (NHS trusts: oversight and
  20support and recommendations about
  restructuring);

• “relevant functions”, in relation to the CMA, means its functions
  under the Competition Act 1998 and the Enterprise Act 2002 so
  far as those functions are exercisable on behalf of the CMA by
  25the CMA Board or a CMA group (within the meaning of
  Schedule 4 to the Enterprise and Regulatory Reform Act 2013).”

(2)In the Health and Social Care Act 2012, omit section 80 (co-operation between
monitor and CMA).

73 Mergers of providers: removal of CMA powers

(1)30After section 72 of the National Health Service Act 2006 insert—

“NHS trusts and foundation trusts: exemption from merger legislation

72A Exemption from Part 3 of the Enterprise Act 2002

(1)For the purposes of Part 3 of the Enterprise Act 2002 (mergers), a
relevant merger situation is not to be treated as having been created
35where two or more relevant NHS enterprises cease to be distinct
enterprises.

(2)But subsection (1) does not apply to a case where two or more relevant
NHS enterprises and one or more enterprises that are not relevant NHS
enterprises cease to be distinct enterprises.

(3)40In this section “relevant NHS enterprise” means the activities, or part of
the activities, of—

(a)an NHS trust established under section 25;

(b)an NHS foundation trust.”

(2)Omit section 79 of the Health and Social Care Act 2012 (competition: mergers
involving NHS foundation trusts).

74 Removal of functions relating to competition etc

(1)Omit sections 72 and 73 of the Health and Social Care Act 2012 (Monitor and
5CMA: concurrent functions).

(2)Schedule 12 contains consequential amendments.

75 Removal of CMA’s involvement in licensing etc

(1)The Health and Social Care Act 2012 is amended as follows.

(2)In section 95 (licensing: special conditions), in subsection (1)—

(a)10in paragraph (a), omit “with the consent of the applicant,”;

(b)in paragraph (b), omit “with the consent of the licence holder,”.

(3)In section 100 (modification of standard conditions)—

(a)omit subsections (6) to (9);

(b)in subsection (11) omit “and section 101”.

(4)15Omit section 101 (modification references to the CMA).

(5)In section 103 (standard condition as to transparency of certain criteria), in
subsection (3)—

(a)in paragraph (a), for “the powers conferred on Monitor by sections 100,
101(7) and paragraph 7(2) of Schedule 10” substitute “the power
20conferred on NHS England by section 100”;

(b)omit paragraph (b) but not the “and” at the end.

(6)In section 141 (levy on providers: consultation), in subsection (8), omit “and
section 142”.

(7)Omit section 142 (levy on providers: responses to consultation).

(8)25In section 304 (regulations, orders and directions), in subsection (5), omit
paragraphs (d) and (j).

(9)Omit Schedule 10 (references by Monitor to the CMA).

Miscellaneous

76 Special Health Authorities: removal of 3 year limit

(1)30In the National Health Service Act 2006—

(a)omit section 28A (three year limit for special health authorities);

(b)in section 272(6), omit paragraph (zc).

(2)In the NHS Counter Fraud (Establishment, Constitution, and Staff and Other
Transfer Provisions) Order 2017 (S.I. 2017/958)—

(a)35in article 2, omit the definition of “the abolition date”;

(b)omit Part 4 (including Schedule 3) (abolition of the authority).

(3)In consequence of subsection (1), in the Health and Social Care Act 2012, omit
section 48.

77 Tidying up etc provisions about accounts of certain NHS bodies

(1)After section 29 of the National Health Service Act 2006 insert—

“29A Special Health Authorities: accounts and audit

(1)In this section a reference to a Special Health Authority is to a Special
5Health Authority which—

(a)performs functions only or mainly in respect of England, or

(b)neither performs functions only or mainly in respect of
England, nor performs functions only or mainly in respect of
Wales.

(2)10A Special Health Authority must keep proper accounts and proper
records in relation to the accounts.

(3)The Secretary of State may give a Special Health Authority directions
as to the form in which its accounts must be kept.

(4)A Special Health Authority must prepare, in respect of each financial
15year, annual accounts in such form as the Secretary of State may direct.

(5)A Special Health Authority must send copies of any annual accounts
prepared by it under subsection (4)—

(a)to the Secretary of State, by such date as the Secretary of State
may direct, and

(b)20to the Comptroller and Auditor General, as soon as is
reasonably practicable following the end of the financial year in
question.

(6)The Comptroller and Auditor General must examine, certify and report
on the annual accounts.

(7)25The Special Health Authority must lay before Parliament—

(a)a copy of the annual accounts, and

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

(8)Nothing in subsection (2) requires any annual accounts prepared by a
Special Health Authority to include matters relating to a charitable
30trust of which it is a trustee.

(9)Nothing in subsection (4) has effect in relation to accounts relating to a
charitable trust of which the Special Health Authority is a trustee.”

(2)In Schedule 4 to that Act (NHS trusts), after paragraph 11 insert—

“Accounts and audit

11A(1)35An NHS trust must keep proper accounts and proper records in
relation to the accounts.

(2)The Secretary of State may give an NHS trust directions as to the
form in which its accounts must be kept.

(3)An NHS trust must prepare, in respect of each financial year, annual
40accounts in such form as the Secretary of State may direct.

(4)For the audit of the annual accounts, see the Local Audit and
Accountability Act 2014 (and, in particular, section 4 of that Act).

(5)The Comptroller and Auditor General may examine—

(a)the annual accounts and any records relating to them, and

(b)any report on them by the auditor or auditors.

An NHS trust must send a copy of its audited annual accounts to
5NHS England by such date as NHS England may direct.

(7)Nothing in sub-paragraph (1) has effect in relation to accounts
relating to a charitable trust of which an NHS trust is a trustee.
Nothing in sub-paragraph (3) requires any accounts prepared by an
NHS trust to include matters relating to a charitable trust of which it
10is a trustee.”

(3)In consequence of subsections (1) and (2)—

(a)in section 6(3)(b) of the National Audit Act 1983, omit “Schedule 15 to
the National Health Service Act 2006 or”;

(b)in the National Health Service Act 2006, omit—

(i)15section 232 and the italic heading before it;

(ii)section 277(3)(n);

(iii)Schedule 15;

(c)in section 57(2A) of the Local Electoral Administration and Registration
Services (Scotland) Act 2006, omit “(apart from in Schedule 15)”.

78 20Repeal of spent powers to make transfer schemes etc

(1)In the Health and Social Care Act 2012, omit—

(a)sections 300 and 301;

(b)section 308(3)(i);

(c)Schedules 22 and 23.

(2)25For section 302 of that Act substitute—

“302 Transfer schemes in respect of previously transferred property

(1)This section applies in relation to any property, rights or liabilities
transferred under a property transfer scheme made under section
300(1) (before its repeal) from a Primary Care Trust, a Strategic Health
30Authority or the Secretary of State to a Special Health Authority or a
qualifying company.

(2)The Secretary of State may make a scheme for the transfer of any such
property, rights or liabilities from the Special Health Authority or
qualifying company to any of the following—

(a)35 a Minister of the Crown;

(b)NHS England;

(c)an integrated care board;

(d)an NHS trust;

(e)an NHS foundation trust;

(f)40a qualifying company.

(3)The things that may be transferred under a scheme under this section
include—

(a)property, rights and liabilities that could not otherwise be
transferred;

(b)property acquired, and rights and liabilities arising, after the
making of the scheme;

(c)criminal liabilities, except where transfer is to a Minister of the
Crown.

(4)5A transfer scheme under this section may make supplementary,
incidental, transitional and consequential provision and may in
particular—

(a)create rights, or impose liabilities, in relation to property or
rights transferred;

(b)10make provision about the continuing effect of things done by
the transferor in respect of anything transferred;

(c)make provision about the continuation of things (including
legal proceedings) in the process of being done by, on behalf of
or in relation to the transferor in respect of anything transferred;

(d)15make provision for references to the transferor in an instrument
or other document in respect of anything transferred to be
treated as references to the transferee.

(5)A transfer scheme under this section may make provision for the
shared ownership or use of property.

(6)20A transfer scheme under this section may provide—

(a)for the scheme to be modified by agreement after it comes into
effect, and

(b)for any such modifications to have effect from the date when the
original scheme comes into effect.

(7)25In this section references to the transfer of property include references
to the grant of a lease.

(8)In this section “qualifying company” means—

(a)a company which is formed under section 223 of the National
Health Service Act 2006 and wholly or partly owned by the
30Secretary of State or NHS England, or

(b)a subsidiary of a company which is formed under that section
and wholly owned by the Secretary of State.”

(3)In Schedule 1 to the Public Records Act 1958 (bodies the records of which are
public records), in Part 1 of the Table at the end of paragraph 3, omit “or section
35300 of the Health and Social Care Act 2012”.

79 Abolition of Local Education and Training Boards

(1)The committees of Health Education England called Local Education and
Training Boards are abolished.

(2)In consequence, the Care Act 2014 is amended as follows.

(3)40In section 100 (objectives, priorities and outcomes), in subsection (4)—

(a)after paragraph (a), insert “and”;

(b)omit paragraph (c).

(4)Omit sections 103 to 107 and the italic heading before them (local functions).

(5)In section 108 (tariffs), in subsection (9), omit “an LETB or”.