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Health And Social Care (Community Health And Standards) Bill

 

These notes refer to the Health and Social Care (Community Health and Standards) Bill as introduced in the House of Commons on 12th March 2003 [Bill 70]

HEALTH AND SOCIAL CARE (COMMUNITY HEALTH AND STANDARDS) BILL

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Health and Social Care (Community Health and Standards) Bill which was introduced in the House of Commons on 12 March. They have been prepared by the Department of Health in order to assist the reader in understanding the Bill and to inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The explanatory notes are to be read in conjunction with the Bill and are not meant to be a comprehensive description of the Bill. So where a clause or part of a clause of the Bill does not seem to require any explanation or comment, none is given.

3.     The Bill extends to England and Wales only, save as mentioned below.

SUMMARY

4.     In July 2000 the Government published The NHS Plan, A plan for investment, a plan for reform 1. In April 2002 the Government published a further document, Delivering the NHS Plan: Next steps on investment, next steps on reform 2 and this Bill gives effect to the proposals to create NHS foundation trusts and to establish an independent healthcare regulator and an equivalent for social care.

    1 For copies: - postal address: PO Box 777, London SE1 6XH. Website address: http://www.doh.gov.uk/nhsplan

    2 ISBN 0101550324 Available from The Stationery Office. Website address: http://www.tso.co.uk/

5.     The Bill provides for the establishment of NHS foundation trusts, of the new health care inspectorate and for the new inspectorate for social care, provides for the recovery of NHS charges, makes changes to primary dental services and provides for a replacement of the Welfare Food Scheme. Furthermore, the Bill amends the Protection of Children Act 1999 ('POCA') and Protection of Vulnerable Adults

[Bill 70-EN]     53/2

('POVA') list provisions 3 and also changes the way appointments to certain health and social care bodies may be carried out.

    3 Section 1 of the Protection of Children Act and section 81 of the Care Standards Act 2000 (containing provisions in respect of the Protection of Vulnerable Adults list) make provision for the keeping of lists of persons considered unsuitable to work with children/vulnerable adults respectively.

THE BILL

6.     The Bill is in 6 parts:

    Part 1 of the Bill establishes NHS foundation trusts - a new form of NHS organisation. NHS foundation trusts will not be subject to direction by the Secretary of State. Instead, an Independent Regulator will monitor their performance.

    NHS foundation trusts will be part of the NHS but they will have greater financial and management freedoms including freedoms to retain surpluses and to invest in delivery of new services, to flexibly manage and reward their staff and to access a wider range of options for capital funding. Each NHS foundation trust will have a Board of Governors responsible for representing the interests of the local community, staff and local partner organisations.

    Part 2 deals with matters relating to the quality of standards. In particular, the Bill sets up the new health care inspectorate and the new social care inspectorate as announced in Delivering the NHS Plan 4 and the proposed role and functions of which were set out in The Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection - a statement of purpose 5. Both inspectorates will be established as executive non-departmental public bodies.

    4 ISBN 0215004884 Available from The Stationery Office. Website address: http://www.tso.co.uk/

    5 For copies - website address: www.doh.gov.uk/statementofpurpose/index.htm

    The Commission for Social Care Inspection (the "CSCI") will be an England only body. The Bill confers social care functions, similar to those of the CSCI, on the National Assembly for Wales ('the Assembly').

    Whilst the Commission for Healthcare Audit and Inspection (the "CHAI") will be an England and Wales body, the reviews and investigations of health care provided by NHS bodies in Wales will be the responsibility of the Assembly.

    This part of the Bill also deals with the handling of complaints made about - NHS bodies and local authorities about the provision of health care and social services respectively.

    Part 3 deals with the recovery of NHS charges. This part of the Bill provides for the NHS to recover hospital treatment and/or ambulance costs where people receive compensation for injuries. This is an expansion of the current scheme for traffic accident cases as set out in the Road Traffic (NHS Charges) Act 1999. The costs would be recovered from the compensator and not the patient receiving the NHS treatment.

    Part 4 of the Bill makes various changes relating to NHS dentistry. It amends the contractual arrangements between Primary Care Trusts ('PCTs') and dentists in line with the proposals for England which were set out in NHS Dentistry: Options for Change 6 and does likewise for Local Health Boards ('LHBs') in Wales. The Bill makes changes to the way patient charges are calculated. The Bill abolishes the Dental Practice Board ('DPB').

    6 For copies: - postal address: PO Box 777, London SE1 6XH. Website address: http://www.doh.gov.uk/cdo/optionsforchange/

    Part 5 of the Bill provides for the replacement of the Welfare Food Scheme, a scheme originally set up to provide milk and vitamins to mothers and children during a time of food rationing. This Part also makes a number of small amendments to other legislation.

7.     Part 1 allows for the establishment of a new type of NHS body - the NHS foundation trust. Clause 1 and Schedule 1 set out the characteristics of NHS foundation trusts. Clauses 2 and 3 and Schedule 2 concerns the appointment of an Independent Regulator of NHS foundation trusts.

8.     Clauses 4 to 10, among other things, set out the procedures for applications for NHS foundation trust status and provide for a register of NHS foundation trusts.

9.     Clauses 11 to 13 set out financial matters related to NHS foundation trusts and clauses 14 to 22 set out the functions of NHS foundation trusts. Clauses 23 to 26 set out the procedures that will apply to failing NHS foundation trusts.

10.     Clause 27 to 30 place various duties on NHS foundation trusts to co-operate with other NHS bodies and to involve and consult the public on planning services.

11.     Clause 31 makes amendments to various Acts relating to the taxation regime for NHS foundation trusts. Clause 33 makes provision for offences related to elections for and meetings of an NHS foundation trust's Board of Governors. Clause 34 places a general duty on each NHS foundation trust to exercise its functions effectively, efficiently and economically.

12.     Part 2 makes provision about quality and standards in health care and establishes two new regulatory bodies - the Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection to regulate health care services and social services respectively. Clauses 36 to 39 establishes the new bodies and abolishes the National Care Standards Commission ('NCSC') and the Commission for Health Improvement ('CHI') whose functions will transfer to them.

13.     Clauses 40 to 42 make provision about quality and standards in NHS health care.

14.     Clauses 43 to 61 concern the functions of the CHAI as respects the inspection and review of NHS health care including its powers to charge fees and its duties to publish inspection reports. In particular, clauses 45 to 48 set out the CHAI's functions in relation to NHS foundation trusts.

15.     Clauses 62 to 65 concern CHAI's powers to enter and inspect premises and to require information and documents and explanations of certain matters. Clauses 66 and 67 concern functions of the Assembly as respects the inspection and review of health care in Wales. Clauses 68 to 71 set out the same powers of inspection for the Assembly for Wales as provided for CHAI for England in clauses 62 to 65.

16.     Clauses 72 to 84 set out the functions of the CSCI including its powers to charge fees and its duties to publish inspection reports. Clauses 85 to 88 concern the CSCI's powers to enter and inspect premises and to require information and documents and explanations of certain matters.

17.     Clauses 89 and 94 broadly confer the same general functions relating to the provision and review of social services functions on the Assembly in relation to Wales as are conferred on the CSCI in relation to England. Clauses 95 to 98 set out the same powers of inspection for the Assembly for Wales as provided for the CSCI for England.

18.     Clause 99 transfers the regulation of independent healthcare 7 from the NCSC to the CHAI and all the other NCSC functions 8 to the CSCI.

    7 Independent healthcare services are those provided by the private and voluntary sector healthcare providers not by the NHS.

    8 Functions under Part 2 of the Care Standards Act 2000 that are transferred to the CSCI are those relating to children's homes, care homes, residential family centres, domiciliary care agencies, nurses agencies, fostering agencies, voluntary adoption agencies and adoption support agencies.

19.     Clauses 100 to 106 insert various provisions into and amend various provisions in the Care Standards Act 2000 ('CSA 2000'). Clauses 107 and 108 confer additional functions on the CSCI in respect of the inspection of boarding schools and colleges and secure training centres.

20.     Clauses 109 to 115 concern complaints. Clauses 109 and 110 make provision for the handling of complaints made about an English, cross-border (i.e: operating in both England and Wales), or Welsh NHS body about the provision of health care. Clauses 111 and 112 do likewise in relation to complaints about the provision of social services in England and Wales respectively.

21.     Clause 116 places a duty of co-operation on both the CHAI and the CSCI and clause 117 enables both Commissions to undertake joint reviews and inspections. Clauses 118 -120 give CSCI and CHAI powers to provide assistance to Ministers and to other bodies. Clauses 121 and 122 provide that the CHAI and CSCI must each lay an annual report before Parliament on the way in which they have exercised their respective functions during the year. Clauses 125 to 128 concern the use of information by the CHAI and the CSCI.

22.     Clause 129 places a duty on the Assembly to publish a report (or reports) on the way in which it exercised its social care functions during the year. Clause 130 concerns the use of information by the Assembly. Clause 131 covers the procedure for an inquiry by the Assembly into the exercise of its social care functions and Clause 132 co-operation between the Assembly and CHAI. Definitions of terms used in this Part are in clause 135.

23.     Part 3 deals with the recovery of NHS charges. This part extends the current arrangements for recovery of NHS costs following road traffic accidents to all cases where compensation is paid in consequence of injuries. The effect of these provisions is that where a person has an accident or is injured and is paid compensation, the costs to the NHS of providing treatment or ambulance services as a result of the injury can be recovered from the person paying compensation.

24.     Clause 137 deals with the circumstances in which persons are liable to pay NHS charges and clauses 138 and 139 set out the arrangements for applying for a certificate of NHS charges. Clause 140 concerns the information that must be contained within a certificate of NHS charges and clause 141 provides for the time within which the charges must be paid. Clause 142 provides a mechanism for recovery of unpaid NHS charges.

25.     Procedures for review of and appeal against certificates are dealt with in clauses 143 to 146.

26.     Clause 149 details how money received under the scheme must be divided up between the relevant NHS health service hospitals and NHS ambulance trusts.

27.     Clauses 150 to 156 cover miscellaneous provisions for the recovery of NHS charges such as how lump sums and periodical payments etc are to be dealt with.

28.     Part 4 of the Bill provides for various changes to NHS dental services. Clause 157 places a duty on Primary Care Trusts and Local Health Boards to provide, or secure the provision of, primary dental services. Clause 158 provides for regulations to confer on the Assembly, Primary Care Trusts and Local Health Boards dental public health functions.

29.     Clause 159 inserts new sections 28K to 28P into the 1977 Act concerning new general dental services contracts. Clause 160 provides for transitional provision to be made in respect of existing providers of general dental services.

30.     Clause 161 allows for regulations to provide for Primary Care Trusts and Local Health Boards to maintain a primary dental services performers list and for only health care professionals included on such a list to perform any primary dental service.

31.     Clause 162 enables a Primary Care Trust or Local Health Board to provide assistance or support to any person providing, or seeking to provide, primary dental services under a GDS or Personal Dental Service (PDS) contract.

32.     Clause 163 abolishes the Dental Practice Board and clause 164 allows for the transfer of rights and liabilities under a GDS contract from a Primary Care Trust or Local Health Board to a Special Health Authority.

33.     Clause 165 makes provision for the making and recovery of charges for dental services provided to patients.

34.     Part 5 of this Bill includes a number of miscellaneous provisions. Clause 167 provides for the replacement of the Welfare Food Scheme. Clause 168 and 169 provide for the Secretary of State to delegate his function of making appointments to certain health and care bodies to a Special Health Authority. Clause 170 amends the list provisions in both the Protection of Children Act and the CSA 2000 (for the Protection of Vulnerable Adults list) so that the requirement to obtain a yearly list check is removed for certain groups.

35.     Part 6 of the Bill contains a number of final provisions.

TERRITORIAL APPLICATION: WALES

36.     Part 1 (NHS foundation trusts) does not apply to Wales.

37.     In Part 2, clauses 89 to 98 provide for social care functions that apply only to the Assembly. In relation to health reviews and investigations functions, Part 2 contains some Wales only provisions in addition to some provisions that apply both to England and Wales.

38.     Part 3 (recovery of NHS charges) as for the existing road traffic scheme is not devolved in respect of Wales and will be operated by the Secretary of State on behalf of both England and Wales. However, clause 174(3) requires that the Secretary of State consult the Assembly before making any regulations relating to the scheme under Part 3.

39.     The dental provisions in Part 4 apply to Wales and powers to make subordinate legislation are exercisable in relation to Wales by the Assembly.

40.     The provisions for the replacement of the Welfare Food Scheme in Part 5 do not transfer all the functions in relation to Welfare Food Scheme as regards Wales. However, this Bill gives the Assembly powers to prescribe the range of foods and descriptions of advice in relation to the operation of the scheme in Wales and a power of direction over bodies administering part or all of the scheme in relation to matters relating to the operation of the scheme or part of a scheme in Wales with the consent of the Secretary of State.

41.     Part 5 also provides for the amendment to the POCA 1999 and CSA 2000 and these changes will apply equally to England and Wales. In addition, the appointments provisions in Part 5 will apply to Wales as they allow for a Special Health Authority to make appointments, for which the Secretary of State has responsibility, to certain bodies which cover Wales and England. However, appointments that are made by Ministers in the devolved administrations will remain the responsibility of those Ministers.

42.     Annex C provides further detail on the provisions that affect the powers of the Assembly.

COMMENTARY ON CLAUSES

PART 1 - NHS FOUNDATION TRUSTS

Introductory

Clause 1: NHS foundation trusts

43.     The Command Paper Delivering the NHS Plan: Next steps on investment, next steps on reform 9 set out the Government's proposals to give greater freedoms to NHS organisations. As part of these changes, a new type of NHS organisation - the NHS foundation trust - will be established. Details of the proposals for NHS foundation trusts are set out in A Guide to NHS Foundation Trusts 10.

    9 For copies - website address: www.doh.gov.uk/deliveringthenhsplan/index.htm

    10 For copies - website address: www.doh.gov.uk/nhsfoundationtrusts/index.htm

44.     Clause 1 sets out that an NHS foundation trust is a public benefit corporation which is authorised under this Part to provide goods and services for the "health service" in England. As this term is defined in section 128 of the 1977 Act as being the health service that is provided by the Secretary of State, the effect is that every NHS foundation trust has a primary purpose of providing health care to the NHS.

45.     Under subsection (2), a public benefit corporation is defined as a body corporate. Each public benefit corporation must have a constitution that accords with Schedule 1.

46.     Schedule 1 sets out minimum statutory requirements for the constitution, governance and membership of public benefit corporations that may be authorised as NHS foundation trusts. It also sets out the audit, accounting and reporting arrangements that are to apply.

47.     Paragraph 1 requires every public benefit corporation to have a constitution that complies with the terms of the Schedule.

48.     Paragraphs 3 to 5 set out the minimum eligibility criteria for the membership of a public benefit corporation. These membership criteria ensure that each NHS foundation trust has representation from the public and staff. The membership may also include the patients of the hospitals managed by the NHS foundation trust, and also their carers. Under paragraph 3, each public benefit corporation is given the power to specify membership criteria in its constitution. The members must include individuals drawn from the public - "the public constituency", and individuals from its staff - "the staff constituency". The public constituency may also include members who are eligible because they have attended an NHS foundation trust hospital as a patient. Paragraph 5 also includes the provision that, as a condition of membership, each member must agree to pay £1 to the public benefit corporation. The paragraph also gives NHS foundation trusts wide powers to set out other eligibility requirements in the constitution.

49.     Paragraphs 6 to 8 require each public benefit corporation to have a Board of Governors. Under the Bill, the Board of Governors comprises the elected representatives of the members of the public benefit corporation, and also individuals who have been appointed by the public benefit corporation to represent certain interests. Under paragraph 6, the public and staff constituencies are to elect representatives from their constituencies to the Board of Governors. Such elections, if contested, must be by way of postal ballot. Under paragraph 7, representatives of the public constituency must be in the majority. There must also be at least one member from the staff constituency and one member appointed from a PCT to which the public benefit corporation provides services. One member must also be appointed from a university if an NHS foundation trust's hospital includes a medical or dental school.

50.     Paragraphs 10 and 11 set out some minimum requirements for meetings of the Board of Governors which must be incorporated in the constitution of the public benefit corporation, including requirements relating to public access to these meetings. Under paragraph 12, each public benefit corporation is also empowered to make other such provisions about the Board of Governors in its constitution, as it deems necessary.

51.     Paragraphs 13 to 16 require each public benefit corporation to have a Board of Directors. Under the Bill, the Board of Directors is the body that is responsible for the day-to-day management of the public benefit corporation, and to this end, paragraph 13(2) requires each public benefit corporation to provide for its powers to be exercised by the Board of Directors on its behalf. The Board of Directors is made up of executive directors, one of whom is the Chief Executive, and non-executive directors, one of whom is the Chairman. The chief executive is appointed and removed by the non-executive directors. The non-executive directors are appointed and removed by the Board of Governors. Only members of the public constituency are eligible for such an appointment. Paragraph 16 sets out detailed provisions for the remuneration of the Board of Directors, which must be included in each public benefit corporation's constitution.

52.     Paragraph 17 requires that each public benefit corporation must keep a register of members and their constituency, members of the Board of Governors, and directors. The details of each register are left to the discretion of the public benefit corporation. The public benefit corporation must make the register, and other documents listed in paragraph 18(1), including its constitution, authorisation, accounts and reports available to the public.

53.     Paragraph 19 requires each public benefit corporation to appoint an auditor, with paragraph 19(3) requiring the establishment of an audit committee to monitor the auditor's functions.

54.     Paragraphs 20 and 21 set out the accounting arrangements for public benefit corporations. The Independent Regulator is given general power to dictate the form and content of these accounts, with the approval of Treasury. To ensure that these bodies remain accountable for their use of public funds, paragraph 21(4) requires that each public benefit corporation must lay a copy of their annual accounts before Parliament.

55.     Paragraph 22 requires each public benefit corporation to make annual reports to the Independent Regulator. Again, the timing, content and form of these reports is left to the Independent Regulator's direction.

56.     Paragraph 23 requires that each public benefit corporation must provide the Independent Regulator with annual forward business plans prepared by the directors of the public benefit corporation. The forward plan must be prepared in consultation with the Board of Governors.

57.     Paragraph 24 provides that copies of a public benefit corporation's annual accounts, auditor's reports and annual reports must be presented to the Board of Governors at a public meeting.

Clause 2: Independent Regulator of NHS Foundation Trusts

58.     This clause establishes the office of an Independent Regulator of NHS foundation trusts. The Independent Regulator is appointed by the Secretary of State and is responsible for setting the terms of, and granting authorisation to, NHS foundation trusts, and monitoring their performance against the terms of authorisation and the requirements set out in this Part.

59.     The office of the Independent Regulator of NHS foundation trusts will be established as a non-ministerial department, held accountable through Ministers to Parliament for the effective performance of its functions.

60.     Subsection (3) introduces Schedule 2 which makes detailed provisions regarding the Independent Regulator. The Schedule includes provisions about the Independent Regulator's terms of appointment and remuneration, staffing of the office and their remuneration, and also funding arrangements, reporting and accounts procedures.

61.     Paragraphs 1 and 2 give the Secretary of State general powers to set the terms and conditions of the Independent Regulator's appointment.

62.     Paragraph 3 provides for the staffing of the Independent Regulator's office. The Independent Regulator is given the power to appoint staff on terms and conditions he thinks appropriate, subject to consultation with the Minister for the Civil Service. In addition, paragraph 3(2) requires the Independent Regulator to appoint a deputy who is to act in his place in the Independent Regulator's absence.

63.     Under paragraph 5, the Secretary of State may make contributions to the Independent Regulator's expenses. This provision is to be read in conjunction with clause 21 which allows the Independent Regulator to impose fees on NHS foundation trusts.

64.     Paragraph 6 sets out provisions that ensure the accountability of the Independent Regulator to the Secretary of State and to Parliament. He must make an annual report to the Secretary of State on the way he has exercised his functions, which the Secretary of State will lay before Parliament. In addition, paragraph 6(3) gives the Secretary of State the power to require any other reports and information relating to the exercise of the Independent Regulator's functions.

65.     Paragraphs 10 and 11 disqualify the Independent Regulator from membership of the House of Commons and the Northern Ireland Assembly.

 
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Prepared: 19 March 2003