Health and Social Care Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
40

(i)
repayment of any amount paid by way of penalty under a
penalty notice which is withdrawn, and
(ii)
prohibition of the institution or continuation of proceedings for
the offence to which the withdrawn notice relates,
(f)
provision for a certificate—
5
(i)
purporting to be signed by or on behalf of a prescribed person,
and
(ii)
stating that payment of any amount paid by way of penalty was
or, as the case may be, was not received on or before a date
specified in the certificate,
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to be received in evidence of the matters so stated,
(g)
provision as to the action to be taken if a penalty is not paid in
accordance with a penalty notice, and
(h)
such other provision in relation to penalties or penalty notices as the
Secretary of State thinks necessary or expedient.
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(2)
Regulations under subsection (1)(b)—
(a)
may make provision for penalties of different amounts to be payable in
different cases, including provision for the penalty payable under a
penalty notice to differ according to the time by which it is paid, but
(b)
must secure that the amount of any penalty payable in respect of any
20
offence does not exceed one half of the maximum amount of the fine to
which a person committing the offence would be liable on summary
conviction.
(3)
In this section—
“penalty” means a penalty under a penalty notice;
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“penalty notice” has the meaning given by section 80(3).
82
Guidance by the Commission in relation to enforcement action
(1)
The Commission must issue guidance about how it will exercise its functions
under any of the following provisions of this Part—
(a)
section 8(5), so far as relating to the variation of a condition or the
30
imposition of additional conditions,
(b)
section 11(5), so far as relating to the variation of a condition or the
imposition of additional conditions,
(c)
sections 13 and 14 (cancellation or suspension of registration),
(d)
section 25 (warning notice),
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(e)
section 80 (penalty notices), and
(f)
section 83 (publication of information).
(2)
The guidance may also include guidance, in relation to any Part 1 offence, as to
the circumstances in which the Commission is likely to take criminal
proceedings for the offence.
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(3)
The Commission may from time to time revise guidance published by it under
this section and issue the revised guidance.
(4)
Before issuing any guidance or revised guidance under this section, the
Commission must consult—
(a)
such persons as may be prescribed, and
45
(b)
such other persons as the Commission considers appropriate.

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
41

83
Publication of information relating to enforcement action etc.
(1)
Regulations may authorise or require the publication by the Commission of
prescribed information relating to—
(a)
the cancellation or suspension of a person’s registration under Chapter
2;
5
(b)
the conviction of any person in respect of a Part 1 offence and the
penalty imposed;
(c)
the variation or removal under section 8(5)(a) or 11(5)(a) of any
condition for the time being in force in relation to a person’s
registration;
10
(d)
the imposition under section 8(5)(b) or 11(5)(b) of any additional
condition;
(e)
a warning notice under section 25;
(f)
the payment by any person of a penalty in accordance with a penalty
notice issued under section 80, and the offence to which the notice
15
relates.
(2)
Any regulations made by virtue of subsection (1)(e) must require the
Commission, before publishing information relating to a warning notice under
section 25, to provide the person to whom the notice was given with an
opportunity to make representations to the Commission relating to the matters
20
dealt with in the notice.
(3)
The regulations may prescribe the time when, and manner in which, any
information is to be published.
84
Proceedings for offences
(1)
Proceedings in respect of a Part 1 offence may not, without the written consent
25
of the Attorney General, be taken by any person other than—
(a)
the Commission, or
(b)
in relation to any functions of the Commission which the Secretary of
State is for the time being discharging by virtue of section 76, the
Secretary of State.
30
(2)
Proceedings for a Part 1 offence may be brought within a period of 12 months
from the date on which evidence sufficient in the opinion of the prosecutor to
warrant the proceedings came to the prosecutor’s knowledge; but no such
proceedings are to be brought by virtue of this subsection more than 3 years
after the commission of the offence.
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85
Offences by bodies corporate
(1)
This section applies where a Part 1 offence is committed by a body corporate.
(2)
If the offence is proved to have been committed by, or with the consent or
connivance of, or to be attributable to any neglect on the part of—
(a)
any director, manager or secretary of the body corporate, or
40
(b)
any person who was purporting to act in any such capacity,
that director, manager, secretary or person purporting to act as such (as well as
the body corporate) is guilty of the offence and liable to be proceeded against
and punished accordingly.

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
42

(3)
The reference in subsection (2) to a director, manager or secretary of a body
corporate includes a reference—
(a)
to any other similar officer of the body, and
(b)
where the body is an English NHS body or English local authority, to
any officer or member of the NHS body or local authority.
5
86
Unincorporated associations
(1)
Proceedings for a Part 1 offence alleged to have been committed by an
unincorporated association are to be brought in the name of the association
(and not in that of any of the members).
(2)
Rules of court relating to the service of documents have effect as if the
10
unincorporated association were a body corporate.
(3)
In proceedings for a Part 1 offence brought against an unincorporated
association, section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to
the Magistrates’ Courts Act 1980 (c. 43) apply as they apply in relation to a
body corporate.
15
(4)
A fine imposed on an unincorporated association on its conviction for a Part 1
offence is to be paid out of the funds of the association.
(5)
If a Part 1 offence committed by an unincorporated association is proved—
(a)
to have been committed with the consent or connivance of an officer of
the association or a member of its governing body, or
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(b)
to be attributable to any neglect on the part of such an officer or
member,

the officer or member (as well as the association) is guilty of the offence and
liable to be proceeded against and punished accordingly.
Service of documents
25
87
Service of documents
(1)
Any notice required under this Part to be given to a person (“R”) may be given
to R—
(a)
by being delivered personally to R,
(b)
by being sent to R—
30
(i)
by a registered post service, as defined by section 125(1) of the
Postal Services Act 2000 (c. 26), or
(ii)
by a postal service which provides for the delivery of the
document to be recorded, or
(c)
subject to section 88, by being sent to R by an electronic communication.
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(2)
Where a notice is given as mentioned in subsection (1)(b), it is, unless the
contrary is proved, to be taken to have been received on the third day after the
day on which it is sent.
(3)
Any notice required under this Part to be given to a body corporate or firm is
duly given if it is given to the secretary or clerk of that body or a partner of that
40
firm.
(4)
For the purposes of section 7 of the Interpretation Act 1978 (c. 30) in its
application to this section, the proper address of a person is—

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
43

(a)
in the case of a person registered under Chapter 2 who has notified the
Commission under regulations under section 12 (regulations about
registration) of an address for service, that address, and
(b)
in any other case, the address determined in accordance with
subsection (5).
5
(5)
That address is—
(a)
in the case of a secretary or clerk of a body corporate, the address of the
registered or principal office of the body,
(b)
in the case of a partner of a firm, the address of the principal office of
the firm, and
10
(c)
in any other case, the last known address of the person.
(6)
In this section and in section 88—
(a)
“electronic communication” has the same meaning as in the Electronic
Communications Act 2000 (c. 7),
(b)
“notice” includes any other document, and
15
(c)
a reference to a notice being given by or to a person includes a reference
to a notice being served by or on a person.
88
Electronic communications
(1)
If a notice required or authorised under this Part to be given by or to a person
is sent by an electronic communication, it is to be treated as given only if the
20
requirements of subsection (2) or (3) are met.
(2)
If the person required or authorised to give the notice is the Commission—
(a)
the person to whom the notice is required or authorised to be given
must have indicated to the Commission the person’s willingness to
receive notices by an electronic communication and provided an
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address suitable for that purpose, and
(b)
the notice must be sent to the address provided by that person.
(3)
If the person required or authorised to give the notice is not the Commission,
the notice must be sent in such manner as the Commission may require.
(4)
An indication given for the purposes of subsection (2) may be given generally
30
for the purposes of notices required or authorised to be given by the
Commission under this Part or may be limited to notices of a particular
description.
(5)
A requirement imposed by the Commission under subsection (3) must be
published in such manner as the Commission thinks appropriate for the
35
purpose of bringing it to the attention of persons who are likely to be affected
by it.
Further amendments
89
Further amendments relating to Part 1
Schedule 5 (which contains further amendments relating to the provisions of
40
this Part) has effect.