|
| |
|
(3) | Those terms and conditions may include provision with respect to the making |
| |
of payments to the Commission in respect of the cost to it of giving effect to the |
| |
| |
(4) | Any arrangements under subsection (1)(a) are not to affect the responsibility of |
| |
the Minister on whose behalf the function is exercised. |
| 5 |
| |
“Northern Ireland Minister” includes the First Minister, the deputy First |
| |
Minister and a Northern Ireland department; |
| |
“Northern Ireland health service” means any of the health services under |
| |
any enactment which extends to Northern Ireland and which |
| 10 |
corresponds to section 1(1) of the National Health Service Act 2006 |
| |
| |
| |
| |
(1) | The Secretary of State may cause an inquiry to be held into any matter |
| 15 |
connected with the exercise by the Commission of any of its functions. |
| |
(2) | Before an inquiry is begun, the Secretary of State may give a direction that it be |
| |
| |
(3) | Where no such direction has been given, the person holding the inquiry may |
| |
decide to hold it, or any part of it, in private. |
| 20 |
(4) | Subsections (2) to (5) of section 250 of the Local Government Act 1972 (c. 70) |
| |
(powers in relation to local inquiries) apply in relation to an inquiry under this |
| |
section as they apply in relation to a local inquiry under that section. |
| |
(5) | The report of the person holding the inquiry is to be published, unless the |
| |
Secretary of State considers that there are exceptional circumstances which |
| 25 |
make publication inappropriate. |
| |
(6) | Publication is to be in such manner as the Secretary of State considers |
| |
| |
| |
70 | Disclosure of confidential personal information: offence |
| 30 |
(1) | This section applies to information which— |
| |
(a) | has been obtained by the Commission on terms or in circumstances |
| |
requiring it to be held in confidence, and |
| |
(b) | relates to and identifies an individual. |
| |
(2) | A person is guilty of an offence if the person knowingly or recklessly discloses |
| 35 |
information to which this section applies during the lifetime of the individual. |
| |
(3) | A person guilty of an offence under this section is liable— |
| |
(a) | on summary conviction, to imprisonment for a term not exceeding 12 |
| |
months, or to a fine not exceeding the statutory maximum, or to both, |
| |
(b) | on conviction on indictment, to imprisonment for a term not exceeding |
| 40 |
two years, or to a fine, or to both. |
| |
|
| |
|
| |
|
(4) | In relation to an offence committed before the commencement of section 154(1) |
| |
of the Criminal Justice Act 2003 (c. 44), the reference in subsection (3)(a) to 12 |
| |
months is to be read as a reference to 6 months. |
| |
(5) | For the purposes of subsection (1)(b), information obtained by the Commission |
| |
is to be treated as identifying an individual if the individual can be identified |
| 5 |
| |
(a) | that information, and |
| |
(b) | other information obtained by the Commission. |
| |
(6) | Reference in this section and in sections 71 to 74 to information obtained or |
| |
disclosed by the Commission includes information obtained or disclosed by a |
| 10 |
person authorised by the Commission. |
| |
| |
(1) | It is a defence for a person charged with an offence under section 70 to prove |
| |
that at the time of the alleged offence— |
| |
(a) | any of the circumstances in subsection (2) applied in relation to the |
| 15 |
| |
(b) | the person reasonably believed that any of them so applied. |
| |
(2) | The circumstances are— |
| |
(a) | that the disclosure was made in a form in which the individual to |
| |
whom the information relates is not identified; |
| 20 |
(b) | that the disclosure was made with the consent of that individual; |
| |
(c) | that the information disclosed had previously been lawfully disclosed |
| |
| |
(d) | that the disclosure was made under or pursuant to regulations under |
| |
section 113 or 114 of the Health and Social Care (Community Health |
| 25 |
and Standards) Act 2003 (c. 43) (complaints about health care or social |
| |
| |
(e) | that the disclosure was made in accordance with any enactment or |
| |
| |
(f) | that the disclosure was necessary or expedient for the purposes of |
| 30 |
protecting the welfare of any individual; |
| |
(g) | that the disclosure was made to any person or body in circumstances |
| |
where it was necessary or expedient for the person or body to have the |
| |
information for the purpose of exercising functions of that person or |
| |
body under any enactment. |
| 35 |
(3) | It is also a defence for a person charged with an offence under section 70 to |
| |
prove that the disclosure was made— |
| |
(a) | for the purpose of facilitating the exercise of any of the Commission’s |
| |
| |
(b) | in connection with the investigation of a criminal offence (whether or |
| 40 |
not in the United Kingdom), or |
| |
(c) | for the purpose of criminal proceedings (whether or not in the United |
| |
| |
(4) | If a person charged with an offence under section 70 relies on a defence in |
| |
subsection (1) or (3), and evidence is adduced which is sufficient to raise an |
| 45 |
issue 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. |
| |
|
| |
|
| |
|
(5) | For the purposes of subsection (2)(a), information disclosed by a person is to be |
| |
treated as being in a form in which an individual is identified if the individual |
| |
can be identified from a combination of— |
| |
| |
(b) | other information disclosed by the person or by the Commission. |
| 5 |
72 | Use of information etc. |
| |
Information obtained by, or documents or records produced to, the |
| |
Commission in connection with any of its functions may be used by the |
| |
Commission in connection with any of its other functions. |
| |
| 10 |
(1) | Subsections (2) and (3) apply to any information obtained by the Commission |
| |
in the course of exercising any of its functions. |
| |
(2) | In the case of information relating to an individual, the Commission may |
| |
disclose the information if— |
| |
(a) | the disclosure is made in a form in which the individual is not |
| 15 |
| |
(b) | the disclosure is made with the consent of the individual. |
| |
(3) | In all cases (whether or not relating to an individual), the Commission may |
| |
disclose the information if— |
| |
(a) | the information has previously been lawfully disclosed to the public, |
| 20 |
(b) | the disclosure is made under or pursuant to regulations under section |
| |
113 or 114 of the Health and Social Care (Community Health and |
| |
Standards) Act 2003 (c. 43) (complaints about health care or social |
| |
| |
(c) | the disclosure is made in accordance with any enactment or court |
| 25 |
| |
(d) | the disclosure is necessary or expedient for the purposes of protecting |
| |
the welfare of any individual, |
| |
(e) | the disclosure is made to any person or body in circumstances where it |
| |
is necessary or expedient for the person or body to have the information |
| 30 |
for the purpose of exercising functions of that person or body under |
| |
| |
(f) | the disclosure is made for the purpose of facilitating the exercise of any |
| |
of the Commission’s functions, |
| |
(g) | the disclosure is made in connection with the investigation of a criminal |
| 35 |
offence (whether or not in the United Kingdom), or |
| |
(h) | the disclosure is made for the purpose of criminal proceedings |
| |
(whether or not in the United Kingdom). |
| |
(4) | Subsections (2) and (3) have effect notwithstanding any rule of common law |
| |
which would otherwise prohibit or restrict the disclosure. |
| 40 |
(5) | For the purposes of subsection (2)(a), information disclosed by the |
| |
Commission is to be treated as being in a form in which an individual is |
| |
identified if the individual can be identified from a combination of— |
| |
| |
(b) | other information disclosed by the Commission. |
| 45 |
|
| |
|
| |
|
74 | Code of practice on confidential personal information |
| |
(1) | The Commission must prepare and publish a code in respect of the practice it |
| |
proposes to follow in relation to confidential personal information. |
| |
(2) | The code must in particular make provision— |
| |
(a) | about the obtaining by the Commission of information which, once |
| 5 |
obtained, will be confidential personal information, and |
| |
(b) | about the handling, use and disclosure by the Commission of |
| |
confidential personal information. |
| |
(3) | Before publishing the code, the Commission must consult— |
| |
(a) | the National Information Governance Board for Health and Social |
| 10 |
| |
(b) | such other persons as it considers appropriate. |
| |
(4) | The Commission must keep the code under review and, if it considers it |
| |
appropriate, from time to time publish a revised code (and references in this |
| |
section to the code include any revised code). |
| 15 |
(5) | In this section “confidential personal information” means information which— |
| |
(a) | is obtained by the Commission on terms or in circumstances requiring |
| |
it to be held in confidence, and |
| |
(b) | relates to and identifies an individual. |
| |
(6) | For the purposes of subsection (5)(b), information obtained by the Commission |
| 20 |
is to be treated as identifying an individual if the individual can be identified |
| |
| |
| |
(b) | other information obtained by the Commission. |
| |
Further provisions about functions of Commission |
| 25 |
75 | Publication of programme of reviews etc. |
| |
(1) | The Commission must from time to time, or at such times as the Secretary of |
| |
State may specify by order, prepare and publish a document setting out— |
| |
(a) | the special reviews and investigations that it proposes to conduct under |
| |
| 30 |
(b) | the studies that it proposes to undertake under section 50, and |
| |
(c) | the reviews that it proposes to conduct under section 53. |
| |
(2) | Before preparing a document under subsection (1) the Commission must |
| |
| |
(a) | the Secretary of State, and |
| 35 |
(b) | any other person or body specified by an order made by the Secretary |
| |
| |
| and it must send each of those persons or bodies a copy of the document once |
| |
| |
(3) | The Commission may determine that any document or combination of |
| 40 |
documents prepared for the purposes of any other enactment or enactments is |
| |
to be treated as a document prepared for the purposes of subsection (1) (so long |
| |
as the requirements of subsection (2) are complied with in relation to the |
| |
document or documents concerned). |
| |
|
| |
|
| |
|
(4) | Nothing in a document published under subsection (1) is to be regarded— |
| |
(a) | as affecting any power of the Secretary of State to require a review or |
| |
investigation to be conducted or a study to be undertaken, or |
| |
(b) | as preventing the Commission from conducting an investigation under |
| |
section 44 where the Commission considers there to be a risk to the |
| 5 |
health, safety or welfare of persons receiving health or social care. |
| |
76 | Failure by the Commission in discharge of its functions |
| |
(1) | The Secretary of State may give a direction to the Commission if the Secretary |
| |
of State considers that the Commission— |
| |
(a) | is failing or has failed to discharge any of its functions, or |
| 10 |
(b) | is failing or has failed properly to discharge any of its functions. |
| |
(2) | A direction under subsection (1) may direct the Commission to discharge such |
| |
of those functions, and in such manner and within such period or periods, as |
| |
may be specified in the direction. |
| |
(3) | If the Commission fails to comply with a direction under subsection (1), the |
| 15 |
| |
(a) | discharge the functions to which the direction relates, or |
| |
(b) | make arrangements for any other person to discharge them on the |
| |
Secretary of State’s behalf. |
| |
77 | Reports for each financial year etc. |
| 20 |
(1) | As soon as possible after the end of each financial year, the Commission must |
| |
make a report on each of the following matters— |
| |
(a) | the way in which it has exercised its functions during the year, |
| |
(b) | the provision of NHS care during the year, |
| |
(c) | the provision of adult social services during the year, and |
| 25 |
(d) | the carrying on of regulated activities during the year. |
| |
(2) | The Commission may comply with subsection (1) by preparing a single |
| |
document or separate documents on each of the matters mentioned there. |
| |
(3) | If the Secretary of State so directs, a report under subsection (1) must include |
| |
separate reports on such aspects of the matters mentioned in that subsection as |
| 30 |
may be specified in the direction. |
| |
| |
(a) | lay before Parliament a copy of each report made under subsection (1), |
| |
| |
(b) | send a copy of each such report to the Secretary of State. |
| 35 |
(5) | The Commission must also provide the Secretary of State with such reports |
| |
and information relating to the exercise of its functions as the Secretary of State |
| |
may from time to time request. |
| |
(6) | Subsection (1)(a) does not apply to the Commission’s functions under the |
| |
Mental Health Act 1983 (c. 20). |
| 40 |
(7) | In this section, “financial year” means— |
| |
(a) | the period beginning with the date on which the Commission is |
| |
established and ending with the next 31 March following that date, and |
| |
|
| |
|
| |
|
(b) | each successive period of 12 months ending with 31 March. |
| |
78 | Reports and information |
| |
(1) | Subsections (2) and (3) apply to a report published by the Commission under |
| |
any provision of this Part or of the Mental Health Act 1983 (c. 20). |
| |
(2) | The Commission must make copies of the report available for inspection at its |
| 5 |
offices by any person at any reasonable time. |
| |
(3) | Any person who requests a copy of the report is entitled to have one on |
| |
payment of such reasonable fee (if any) as the Commission considers |
| |
| |
(4) | The Commission may charge a person such reasonable fee as it considers |
| 10 |
appropriate where it provides the person, on request, with any other |
| |
information relevant to the exercise of the Commission’s functions under this |
| |
| |
| |
| 15 |
(1) | The Commission may with the consent of the Secretary of State from time to |
| |
time make and publish provision— |
| |
(a) | requiring a fee to be paid in respect of— |
| |
(i) | an application for registration as a service provider or manager |
| |
| 20 |
(ii) | the grant or subsistence of any such registration, or |
| |
(iii) | an application under section 15(1); |
| |
(b) | requiring English NHS bodies, English local authorities, persons |
| |
registered under Chapter 2 and such other persons as may be |
| |
prescribed to pay a fee in respect of the exercise by the Commission of |
| 25 |
such of its other functions under this Part as may be prescribed. |
| |
(2) | The amount of a fee payable under provision under subsection (1) is to be such |
| |
as may be specified in, or calculated or determined under, the provision. |
| |
(3) | Provision under subsection (1) may include provision— |
| |
(a) | for different fees to be paid in different cases, |
| 30 |
(b) | for different fees to be paid by persons of different descriptions, |
| |
(c) | for the amount of a fee to be determined by the Commission in |
| |
accordance with specified factors, and |
| |
(d) | for determining the time by which a fee is to be payable. |
| |
(4) | Before making provision under subsection (1) the Commission must consult |
| 35 |
such persons as it thinks appropriate. |
| |
(5) | The Secretary of State may by regulations make provision as to— |
| |
(a) | the manner in which provision under subsection (1) is to be made and |
| |
| |
(b) | the matters to be taken into account by the Commission before making |
| 40 |
provision under that subsection. |
| |
|
| |
|
| |
|
(6) | If the Secretary of State considers it necessary or desirable to do so, the |
| |
Secretary of State may by regulations make provision determining the amount |
| |
of a fee payable to the Commission by virtue of this section, and the time at |
| |
which it is payable, instead of those matters being determined in accordance |
| |
with provision made under subsection (1). |
| 5 |
(7) | Before making any regulations under this section, the Secretary of State must |
| |
consult the Commission and such other persons as the Secretary of State thinks |
| |
| |
(8) | For the purpose of determining the fee payable by a person by virtue of this |
| |
section, the person must provide the Commission with such information, in |
| 10 |
such form, as the Commission may require. |
| |
(9) | A fee payable by virtue of this section may, without prejudice to any other |
| |
method of recovery, be recovered summarily as a civil debt. |
| |
| |
| 15 |
(1) | Where the Commission is satisfied that a person has committed a fixed penalty |
| |
offence, the Commission may give the person a penalty notice in respect of the |
| |
| |
(2) | A fixed penalty offence is any Part 1 offence that is prescribed for the purposes |
| |
| 20 |
(3) | A penalty notice is a notice offering the person the opportunity of discharging |
| |
any liability to conviction for the offence to which the notice relates by payment |
| |
of a penalty in accordance with the notice. |
| |
(4) | Where a person is given a penalty notice, proceedings for the offence to which |
| |
the notice relates may not be instituted before the end of such period as may be |
| 25 |
| |
(5) | Where a person is given a penalty notice, the person cannot be convicted of the |
| |
offence to which the notice relates if the person pays a penalty in accordance |
| |
| |
(6) | Penalties under this section are payable to the Commission. |
| 30 |
(7) | Penalties received by the Commission under this section must be paid to the |
| |
| |
81 | Penalty notices: supplementary provision |
| |
(1) | Regulations may make— |
| |
(a) | provision as to the form and content of penalty notices, |
| 35 |
(b) | provision as to the monetary amount of the penalty and the time by |
| |
| |
(c) | provision determining the methods by which penalties may be paid, |
| |
(d) | provision as to the records to be kept in relation to penalty notices, |
| |
(e) | provision for or in connection with the withdrawal, in prescribed |
| 40 |
circumstances, of a penalty notice, including— |
| |
|
| |
|