Health Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Health Bill

Health Bill
Part 1 — Smoke-free premises, places and vehicles
6

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Fixed penalties for offence of smoking in smoke-free place
(1)
An authorised officer of an enforcement authority (see section 10) who has
reason to believe that a person has committed an offence under section 7(2) on
premises, or in a place or vehicle, in relation to which the authorised officer has
functions may give him a penalty notice in respect of the offence.
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(2)
A penalty notice is a notice offering a person the opportunity to discharge any
liability to conviction for the offence to which the notice relates by paying a
penalty in accordance with this Part.
(3)
Schedule 1 makes further provision about fixed penalties.
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Offence of failing to prevent smoking in smoke-free place
10
(1)
It is the duty of any person who controls or is concerned in the management of
smoke-free premises to cause a person smoking there to stop smoking.
(2)
Regulations made by the appropriate national authority may provide for a
duty corresponding to that mentioned in subsection (1) in relation to—
(a)
places which are smoke-free by virtue of section 4,
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(b)
vehicles which are smoke-free by virtue of section 5.

The duty is to be imposed on persons or descriptions of person specified in the
regulations.
(3)
A person who fails to comply with the duty in subsection (1), or any
corresponding duty in regulations under subsection (2), commits an offence.
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(4)
It is a defence for a person charged with an offence under subsection (3) to
show—
(a)
that he took reasonable steps to cause the person in question to stop
smoking, or
(b)
that he did not know, and could not reasonably have been expected to
25
know, that the person in question was smoking, or
(c)
that on other grounds it was reasonable for him not to comply with the
duty.
(5)
If a person charged with an offence under this section relies on a defence in
subsection (4), and evidence is adduced which is sufficient to raise an issue
30
with respect to that defence, the court must assume that the defence is satisfied
unless the prosecution proves beyond reasonable doubt that it is not.
(6)
A person guilty of an offence under this section is liable on summary
conviction to a fine not exceeding a level on the standard scale specified in
regulations made by the Secretary of State.
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(7)
The references in this section, however expressed, to premises, places or
vehicles which are smoke-free, are to those premises, places or vehicles so far
as they are smoke-free under or by virtue of this Part.

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Part 1 — Smoke-free premises, places and vehicles
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Enforcement
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Enforcement
(1)
The appropriate national authority may make regulations designating the
bodies or descriptions of body which are to be enforcement authorities for the
purposes of this Part.
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(2)
The regulations—
(a)
must specify the descriptions of premises, place or vehicle in relation to
which an enforcement authority has enforcement functions,
(b)
may provide for a case being dealt with by one enforcement authority
to be transferred (or further transferred, or transferred back) to, and
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taken over by, another enforcement authority.
(3)
It is the duty of an enforcement authority to enforce, as respects the premises,
places and vehicles in relation to which it has enforcement functions, the
provisions of this Part and regulations made under it.
(4)
The appropriate national authority may direct, in relation to cases of a
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particular description or a particular case, that any duty imposed on an
enforcement authority by subsection (3) is to be discharged instead by the
appropriate national authority.
(5)
In this Part, “authorised officer”, in relation to an enforcement authority, means
any person (whether or not an officer of the authority) who is authorised by it
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in writing, either generally or specially, to act in matters arising under this Part.
(6)
If regulations under this section so provide, no person is to be so authorised
unless he has such qualifications as are prescribed by the regulations.
(7)
Schedule 2 makes provision about powers of entry, etc.
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Obstruction etc. of officers
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(1)
Any person who intentionally obstructs an authorised officer of an
enforcement authority, acting in the exercise of his functions under or by virtue
of this Part, commits an offence.
(2)
Any person who without reasonable cause fails to give to an authorised officer
of an enforcement authority, acting in the exercise of his functions under or by
30
virtue of this Part, any facilities, assistance or information which the authorised
officer reasonably requires of him for the performance of those functions
commits an offence.
(3)
A person commits an offence if, in purported compliance with any
requirement of an authorised officer mentioned in subsection (2)—
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(a)
he makes a statement which is false or misleading, and
(b)
he either knows that it is false or misleading or is reckless as to whether
it is false or misleading.

“False or misleading” means false or misleading in a material particular.
(4)
A person guilty of an offence under this section is liable on summary
40
conviction to a fine not exceeding level 3 on the standard scale.
(5)
If a direction of the appropriate national authority has effect under section
10(4), this section has effect, in relation to any case or case of a description

Health Bill
Part 2 — Prevention and Control of Health Care Associated Infections
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specified in the direction, as if references to an authorised officer of an
enforcement authority were to a person acting on behalf of the appropriate
national authority.
Interpretation, etc.
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Interpretation and territorial sea
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(1)
In this Part—
“authorised officer” has the meaning given by section 10(5),
“premises” includes a tent, and (if not a ship within the meaning of the
Merchant Shipping Act 1995 (c. 21)) a moveable structure and an
offshore installation (as defined in regulation 3 of the Offshore
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Installations and Pipeline Works (Management and Administration)
Regulations 1995 (S.I. 1995/738)),
“specified”, in relation to regulations, means specified in the regulations,
“vehicle” is to be construed in accordance with section 5(5).
(2)
The appropriate national authority may by order provide for the definition of
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“premises” in subsection (1) to be read as if a reference to another enactment
were substituted for the reference to regulation 3 of the Offshore Installations
and Pipeline Works (Management and Administration) Regulations 1995.
(3)
This Part—
(a)
has effect in relation to the territorial sea adjacent to England as it has
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effect in relation to England, and
(b)
has effect in relation to the territorial sea adjacent to Wales as it has
effect in relation to Wales.
(4)
The following have effect for the purposes of subsection (3) if or in so far as
expressed to apply for the general or residual purposes of the Act in question
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or for the purposes of this section—
(a)
an Order in Council under section 126(2) of the Scotland Act 1998
(c. 46),
(b)
an order or Order in Council under or by virtue of section 155(2) of the
Government of Wales Act 1998 (c. 38).
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Part 2
Prevention and Control of Health Care Associated Infections
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Code of practice relating to health care associated infections
After section 47 of the Health and Social Care (Community Health and
Standards) Act 2003 (c. 43) (referred to in this Act as “the 2003 Act”) insert—
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“47A
Code of practice relating to health care associated infections
(1)
The Secretary of State may issue a code of practice—
(a)
applying to bodies within subsection (2), and
(b)
relating to the prevention and control of health care associated
infections in connection with health care provided by or for
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those bodies.
(2)
The bodies within this subsection are—

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Part 2 — Prevention and Control of Health Care Associated Infections
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(a)
English NHS bodies other than Strategic Health Authorities;
and
(b)
cross-border SHAs.
(3)
The code may provide for provisions of the code to apply to—
(a)
such description or descriptions of bodies within subsection (2)
5
as may be specified in the code;
(b)
such body or bodies within that subsection as may be so
specified.
(4)
The code may in particular—
(a)
make such provision as the Secretary of State considers
10
appropriate for the purpose of safeguarding individuals
(whether receiving health care or otherwise) from the risk, or
any increased risk, of being exposed to health care associated
infections;
(b)
contain provisions imposing on bodies to which the provisions
15
apply requirements in relation to health care provided for such
bodies by other persons as well as in relation to health care
provided by such bodies.
(5)
The code may—
(a)
operate by reference to provisions of other documents specified
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in it (whether published by the Secretary of State or otherwise);
(b)
provide for any reference in it to such a document to take effect
as a reference to that document as revised from time to time;
(c)
make different provision for different cases or circumstances.
(6)
Nothing in subsections (3) to (5) is to be read as prejudicing the
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generality of subsection (1).
(7)
The Secretary of State must keep the code under review and may from
time to time—
(a)
revise the whole or any part of the code, and
(b)
issue a revised code.
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(8)
In this section “health care associated infection” means any infection to
which an individual may be exposed in circumstances where—
(a)
health care is being, or has been, provided to that or any other
individual, and
(b)
the risk of exposure to the infection is directly or indirectly
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attributable to the provision of the health care.
(9)
But subsection (8) does not include an infection to which the individual
is deliberately exposed as part of any health care.
(10)
Any reference in this Part to a code of practice issued under this section
includes a revised code issued under it.
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47B
Consultation etc.
(1)
Where the Secretary of State proposes to issue a code of practice under
section 47A, he must—
(a)
prepare a draft of the code, and
(b)
consult such persons as he considers appropriate about the
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draft.

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(2)
Where the Secretary of State proposes to issue a revised code under
section 47A which in his opinion would result in a substantial change
in the code, he must—
(a)
prepare a draft of the revised code, and
(b)
consult such persons as he considers appropriate about the
5
change.
(3)
Where, following consultation under subsection (1) or (2), the Secretary
of State issues the code or revised code (whether in the form of the draft
or with such modifications as he thinks fit), it comes into force at the
time when it is issued by the Secretary of State.
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(4)
Where—
(a)
any document by reference to whose provisions the code
operates as mentioned in section 47A(5)(a) and (b) is a
document published by the Secretary of State in connection
with his functions relating to health,
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(b)
the Secretary of State proposes to revise the document, and
(c)
in the opinion of the Secretary of State, the revision would result
in a substantial change in the code,

the Secretary of State must, before revising the document, consult such
persons as he considers appropriate about the change.
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(5)
Where—
(a)
any document by reference to whose provisions the code
operates as mentioned in section 47A(5)(a) and (b) is not one to
which subsection (4)(a) above applies,
(b)
the document is revised, and
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(c)
in the opinion of the Secretary of State, the revision results in a
substantial change in the code,

the Secretary of State must consult such persons as he considers
appropriate about whether the code should be revised in connection
with the change.
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(6)
Consultation undertaken by the Secretary of State before the
commencement of this section is as effective for the purposes of this
section as consultation undertaken after that time.
47C
Effect of code under section 47A
(1)
Where any provisions of a code of practice issued under section 47A
35
apply to an NHS body, the body must observe those provisions in
discharging its duty under section 45.
(2)
A failure to observe any provision of a code of practice issued under
section 47A does not of itself make a person liable to any criminal or
civil proceedings.
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(3)
A code of practice issued under section 47A is admissible in evidence
in any criminal or civil proceedings.”
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Code of practice: effects on existing functions of Commission for Healthcare
Audit and Inspection
(1)
Sections 50 to 52 and 54 of the 2003 Act are amended as follows.
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(2)
In section 50 (annual reviews), for subsection (4) substitute—
“(4)
In exercising its functions under this section in relation to any health
care, the CHAI must take into account—
(a)
the standards set out in statements published under section 46,
and
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(b)
any code of practice issued under section 47A.
(4A)
In conducting a review under subsection (1) in relation to a particular
body to which provisions of such a code apply, the CHAI must
accordingly consider (among other things) the extent, if any, to which
those provisions are being observed by the body.”
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(3)
In section 51 (reviews: England and Wales), in subsection (4)(a) after “section
46” insert “and any code of practice issued under section 47A”.
(4)
In section 52 (reviews and investigations: England), for subsection (3)
substitute—
“(3)
The CHAI has the function of conducting reviews of—
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(a)
the arrangements made by English NHS bodies and cross-
border SHAs for the purpose of discharging their duty under
section 45;
(b)
the arrangements made by particular bodies within paragraph
(a) for the purpose of discharging that duty.”
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(5)
For section 52(5) substitute—
“(5)
In exercising its functions under this section in relation to any health
care, the CHAI must take into account—
(a)
the standards set out in statements published under section 46,
and
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(b)
any code of practice issued under section 47A.
(5A)
In conducting a review under subsection (3) in relation to a particular
body to which provisions of such a code apply, the CHAI must
accordingly consider (among other things) the extent, if any, to which
those provisions are being observed by the body.”
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(6)
In section 54 (functions relating to Secretary of State and Assembly), in
subsection (2) after “section 46 or 47” insert “, or any code of practice issued
under section 47A,”.
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Code of practice: improvement notices
After section 53 of the 2003 Act insert—
35
“53A
Failings in connection with code under section 47A: improvement
notices
(1)
This section applies where, following such a review or investigation as
is mentioned in section 53(1), the CHAI—
(a)
is of the view that any provisions of a code of practice issued
40
under section 47A and applying to an English NHS body or a
cross-border SHA are not being observed in any material
respect in relation to the provision of health care by or for the
body, but

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(b)
having regard to all the circumstances, is not of the view that it
is required to make a report under section 53(2) (or, if relevant,
section 53(6)).
(2)
The CHAI may serve a notice under this section (an “improvement
notice”) on the body in respect of the failure to observe the code, if it
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considers that serving the notice is the most appropriate course of
action for it to take with a view to securing that the failure is remedied.
(3)
An improvement notice must—
(a)
state that the CHAI has formed the view mentioned in
subsection (1)(a) in relation to the provision of health care by or
10
for the body, giving particulars of the material respect in which
the CHAI considers that the provisions of the code are not being
observed as mentioned in that subsection,
(b)
state the CHAI’s reasons for its view, and
(c)
require the body to remedy the failure to observe the code, and
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to do so within such period as is specified in the notice.
(4)
An improvement notice may (but need not) include a recommendation
by the CHAI as to the way in which the failure should be remedied.
(5)
An improvement notice may relate to more than one failure within
subsection (1)(a), and in such a case—
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(a)
subsections (2) to (4) and section 53B apply separately in
relation to each such failure, but
(b)
any report required by that section may relate to more than one
such failure.
(6)
Where the CHAI serves an improvement notice on a body under this
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section, the CHAI must notify the Secretary of State and—
(a)
the regulator, if the body is an NHS foundation trust, and
(b)
any relevant Strategic Health Authority, if the body is a Primary
Care Trust or an NHS trust.
(7)
In this section and section 53B “relevant Strategic Health Authority”
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means—
(a)
in relation to a Primary Care Trust, any Strategic Health
Authority whose area includes any part of the Trust’s area;
(b)
in relation to an NHS Trust (other than one responsible for
providing ambulance services), the Strategic Health Authority
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in whose area all or most of the Trust’s hospitals,
establishments or facilities are situated;
(c)
in relation to an NHS Trust responsible for providing
ambulance services, the Strategic Health Authority in whose
area the headquarters establishment responsible for the control
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of those services is situated.
(8)
Subsection (9) applies where—
(a)
an improvement notice is served on a body in respect of a
particular failure to observe a code of practice issued under
section 47A, and
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(b)
a review under section 52(3)(b) is conducted by the CHAI in
pursuance of section 53B(4)(a) with a view to assessing the
body’s compliance with the notice.