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Clause 43: Frequency and period of review
202. Under clause 43 the Commission is required to publish details of how often it will conduct periodic reviews. It can decide to undertake reviews at different intervals in different circumstances. For instance, the Commission may decide that it will review bodies that perform consistently well less frequently. The Commission must submit its proposals on the frequency of reviews to the Secretary of State for approval.
Clause 44: Special reviews and investigations
203. Clause 44 enables the Commission to conduct additional reviews and investigations (referred to as 'special reviews and investigations'). These can cover: any aspect of health and adult social services provided or commissioned by a PCT or local authority; functions carried out by Strategic Health Authorities; or, where the majority of their functions are carried out in England, Special Health Authorities. Reviews and investigations under this clause could look specifically or generally at any issue to do with different kinds of health or adult social care, how particular functions are carried out or provision by particular people or bodies. Investigations may be carried out where the Commission identifies a risk to a care recipient's health or welfare. For instance, the Commission might investigate older people's services in a particular area, and then nationally where there is evidence to suggest a problem is more widespread. The Commission may also carry out reviews into topics of particular interest, for instance, it may carry out a review of care pathways for people with long-term conditions. The Commission must carry out a review or investigation if requested by the Secretary of State.
204. The Commission will have to publish reports of any review or investigation carried out under this section. Regulations will set out what procedure should apply to allow people to make representations to the Commission before it publishes details of a report under this clause. As with similar powers in other clauses, the reason for this is to give the reviewed body time to comment and for any comments to be considered by the Commission.
Clause 45: Power to extend periodic review function
205. Clause 45 gives the Secretary of State the power to make regulations requiring the Commission to carry out such periodic reviews (as in clause 42) of regulated activities and of certain registered service providers, as may be specified in the regulations. The regulations can also require the Commission to publish a report of its review or assess the performance of registered service providers following such reviews and publish reports of its assessment. It is envisaged that in some cases the evaluation might be in the form of a comparative rating such as a star rating.
206. Regulations under this clause can require the Commission to review some or all registered service providers, some or all regulated activities provided by such service providers, or even particular aspects of a regulated activity. Subsection (3) allows for particular aspects of provision to be reviewed separately, despite the fact that they may already have formed part of a broader review under clause 42.
207. This will allow the Commission to look at certain types of services. For instance, the Secretary of State may decide that all residential premises providing adult social care should be reviewed and assessed individually, whether run privately or by a local authority. Alternatively, regulations could require that all maternity services should be reviewed by the Commission. This would be possible even if these services have already been covered under the review of health care provision in a PCT area under clause 42(1).
208. In other cases, the Secretary of State may want the Commission to publish information on a particular service. For instance, many NHS Trusts sub-contract with private hospitals to provide additional capacity for routine surgery such as hip operations. Although these services would be covered by reviews by the Commission (under clause 42) of the overall provision of health care by a Trust, the Secretary of State may want the Commission to separately review the quality of provision under such arrangements. Although it may not be useful to aggregate performance across a small number of indicators into results for each provider of hip operations, the Commission could still be required to publish details of the review.
209. Where regulations are made extending periodic reviews, the Commission must publish details of how often these reviews will be conducted as with periodic reviews under clause 42. These reviews will also be by reference to a set of indicators devised or approved by the Secretary of State.
210. The Commission must devise a methodology for assessing and evaluating bodies against relevant indicators, and this methodology must be approved by the Secretary of State. It must publish its methodology, as well as the indicators used for reviews, whether they are set by the Secretary of State, or set by the Commission and approved by the Secretary of State.
211. Regulations may set out the procedure that should apply to allow people to make representations to the Commission before the report is published. The reason for setting out this procedure is to ensure that the reviewed body is given time to comment, and that any comments are considered by the Commission
212. It is intended that, where possible and appropriate, the same information would be used to inform a review under this clause that was used in other reviews of health or adult social care provision that the Commission carried out. This will help avoid duplication in the information requests that providers and commissioners receive.
Clause 46: Failings by English local authorities
213. Clause 46 sets out steps which the Commission must or may take when, following a review under clause 42 or 45, or a review or investigation under clause 44, it judges that there are failings in a local authority's discharge of its adult social services functions.
214. If the failings are not substantial, the Commission may notify the local authority, setting out the detail of the failure, the action to be taken to rectify it, and the time by which the Commission considers that this should be done. The Commission must also inform the Secretary of State of the action it has taken.
215. If the Commission considers that a local authority is significantly failing to discharge any of its adult social services functions to an acceptable standard it is obliged to inform the Secretary of State and recommend any special measures that it considers that the Secretary of State should take. Following a recommendation by the Commission of special measures, the Commission must, if asked by the Secretary of State, undertake a further review of the local authority concerned and prepare a further report, covering any particular issues the Secretary of State might specify.
216. Measures which may be recommended by the Commission include the use by the Secretary of State of his powers of intervention (as set out in the Local Authority Social Services Act 1970 (section 7D), the Children Act 1989 (sections 81 and 84), the Local Government Act 1999 (section 15), and the Health and Social Care Act 2001 (section 46)). Under special measures the Secretary of State may issue the failing local authority with directions. In the most serious cases a direction may require that a specific function shall be exercised by the Secretary of State or a nominee. The Audit Commission report "A Force for Change" shows how special measures can improve performance.
217. The Commission does not have equivalent powers in relation to NHS bodies, as these are performance managed by Strategic Health Authorities on behalf of the Secretary of State.
Clause 47: Failings by Welsh NHS bodies
218. Where the Commission considers there are significant failings in the provision of health care by or for a Welsh NHS body or in the running of a Welsh NHS body or in the running of a body or the practice of an individual providing health care for a Welsh NHS body, subsection (1) requires the Commission to inform the Welsh Ministers. Subsection (2) allows the Commission to recommend that the Welsh Ministers take special measures to improve the situation.
CHAPTER 4 - FUNCTIONS UNDER THE MENTAL HEALTH ACT 1983
Clause 48 and Schedule 3 - Transfer and amendment of functions under the Mental Health Act 1983
219. Clause 48 and Schedule 3 transfer the functions exercised by MHAC under the Mental Health Act to the Commission in relation to England, and to the Welsh Ministers in relation to Wales. The Commission and the Welsh Ministers are collectively referred to as the "relevant regulatory authority" where appropriate.
220. Section 121 of the Mental Health Act confers certain functions directly on MHAC, including a duty to review certain decisions relating to the withholding of post sent by or to patients detained under the Mental Health Act in high security psychiatric hospitals and a duty to publish a biennial report on its activities. Section 121 also requires that the Secretary of State direct MHAC to exercise certain functions on his behalf. In Wales, this requirement falls on the Welsh Ministers. The functions which the Secretary of State and the Welsh Ministers must direct MHAC to excise include the appointment of registered medical practitioners to act as second opinion appointed doctors to approve certain forms of treatment under Parts 4 and 4A of the Mental Health Act. They also includes functions under section 120 of the Mental Health Act in relation to the general protection of patients subject to the Act, including the duty to keep under review the discharge of certain duties and the exercise of certain powers under the Act (note that the functions conferred by section 120 are themselves amended in some respects by Schedule 3 of the Bill - see below.)
221. Subsection (1) of clause 48 transfers to the Commission the functions which the Secretary of State must currently direct MHAC to perform in relation to England, as well as two associated functions. Subsection (3) transfers to the Commission the powers conferred directly on MHAC by section 121 of the Mental Health Act. In relation to Wales, those functions are transferred to the Welsh Ministers. Subsection (4) provides that section 121 of the Mental Health Act ceases to have effect, which means (amongst other things) that there is no longer a requirement on the Welsh Ministers to direct MHAC (or anyone else) to exercise any of their functions under the Mental Health Act on their behalf. In practice, the effect is to transfer to the Welsh Ministers the functions which MHAC is currently required to perform on their behalf in Wales. Subsection (2) provides that registered medical practitioners and other people appointed or authorised by the Commission in the exercise of a function under the Mental Health Act may include members or employees of the Commission (just as section 121 of the Mental Health Act currently allows the equivalent people to be members of MHAC).
222. Subsection (5) of clause 48 introduces Schedule 3 which makes further amendments to the Mental Health Act. In particular, paragraph 8 of Schedule 3 replaces section 120 of the Mental Health Act. Under subsection (1) of new section 120, the relevant regulatory authority has a responsibility to review the exercise of powers and the discharge of duties in relation to detention, supervised community treatment and guardianship under the Mental Health Act. Under subsection (2) it must make arrangements for authorised people to visit and interview relevant patients. These are equivalent to the functions conferred on MHAC under the Mental Health Act as it stands now, except that they are extended to cover patients subject to guardianship as well as detention and supervised community treatment. The responsibility under subsection (1) does not extend to monitoring the functions conferred on any court including the Mental Health Review Tribunal or the Secretary of State (the performance of the Mental Health Review Tribunal is subject to separate scrutiny.) The relevant regulatory authority must undertake an investigation into the exercise of the relevant functions if it thinks it is appropriate to do so, but it is not required to undertake or continue an investigation if it does not consider it appropriate to do so. Under subsection (4), it must also make arrangements for the investigation of complaints concerning the exercise of relevant powers and duties under the Mental Health Act.
223. Subsection (7) of new section 120 provides that a person authorised by the relevant regulatory authority has a right of entry to hospitals, to care homes registered under the Care Standards Act 2000 and to premises used for carrying out regulated activities in respect of which a person is registered under Part 2 of the Bill in order to carry out a review or investigation. The Bill does not confer a similar right to enter private homes. However, a patient may consent to be interviewed (in private, where appropriate). Authorised people may also require relevant records or other documents on the premises to be produced for inspection.
224. Paragraph 9 of Schedule 3 inserts sections 120A-120D into the Mental Health Act. Under section 120A, the regulatory authority is able to publish a report of any review or investigation it undertakes under section 120(1). The Secretary of State and Welsh Ministers may make regulations about the making of representations before the publication of such a report. This will allow people who are subject to review and investigation an opportunity to respond if they think that there are mitigating factors, errors or other circumstances that might have affected the findings and which they do not think have been adequately taken into account. The Secretary of State will consult the Commission before doing this.
225. New section 120B enables the relevant regulatory authority to require hospital managers, social services departments and other prescribed people to publish a statement of the action they propose to take in response to any recommendations following a review or investigation undertaken under section 120(1). This will provide a public statement about the steps the person or body in question will take to address any concerns that are raised in reports.
226. The Mental Health Act confers powers and duties on a variety of people, including individual professionals and both statutory and independent bodies. For the most part, the people to whom these powers and duties fall are either responsible for hospitals (known as hospital managers in the Mental Health Act) which care for patients subject to the Mental Health Act, or are local social services authorities, or else are individuals working within such hospitals or on behalf of such authorities.
227. However, it is not only hospital managers and social services authorities and their staff who exercise relevant functions under the Mental Health Act and contribute to its operation. There may, therefore, be circumstances in which reviews or investigations make recommendations that are addressed (in whole or in part) to other people. In these cases, it would make sense for the people concerned to be asked directly to publish a report of the action they propose to take as a result. This might include, for example, other NHS bodies that are responsible for providing or commissioning services for patients subject to the Mental Health Act. The regulations can also set out what such statements should contain and how quickly they should be published.
228. New section 120C obliges hospital managers, local social services authorities and other prescribed people to provide the relevant regulatory authority with information, including records and documents, that the authority may require in relation to its functions under section 120. Examples of the kind of information which might be requested are:
- statistical information on people subject to the formal powers under the Mental Health Act, including data relating to particular groups of patients such as children, adolescents, women, and black and ethnic minority patients;
- information on the use of particular powers, such as the granting of leave of absence;
- the number of deaths and other serious incidents;
- information on the use of seclusion in respect of patients.
229. New section 120D requires the Commission to publish an annual report on the way it has exercised its functions under the Mental Health Act, a copy of which must be laid before Parliament. Welsh Ministers will have to lay a report before the National Assembly for Wales.
230. Paragraph 12 of Schedule 3 inserts a new section 134A into the Mental Health Act. Section 134 of that Act provides, in particular, for the withholding of postal packets sent to or by patients detained in high security psychiatric hospitals in specified circumstances. Subsection (1) of the new Section 134A(1) provides that the relevant regulatory authority must review any decision to withhold a postal packet or anything contained in it on application by a specified person. These provisions are the equivalent of powers that already exist in section 121 of the Mental Health Act in relation to the review by MHAC of decisions to withhold postal packets under section 134 of that Act.
231. Subsection (5) provides that the Secretary of State may, by regulations, make provision in connection with applications to the Commission and the determination of any such application. This includes provision for the production to the Commission of any postal packet in question. Subsection (6) gives Welsh Ministers a similar power to make regulations about the making of applications to them.
232. This is, in effect, a restatement of the power to make regulations in subsection (9) of section 121 of the Mental Health Act as it stands now. The provision made under that power is currently to be found in Regulation 18 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 (SI 1983/893). Regulation 18 provides, in particular, that an application for a review of a decision to withhold a postal packet may be made to MHAC in any form that MHAC accepts as sufficient in the circumstances, and need not be in writing. Applicants must let MHAC have a copy of the notice of withholding provided by the relevant hospital. Regulation 18 also empowers MHAC to direct people to produce any documents, information or other evidence it reasonably requires for its review of the decision. The Government envisages that the powers in subsection (5) of the new section 134A will be used to make similar regulations in relation to the Commission.
CHAPTER 5 - FURTHER FUNCTIONS
Further functions
Clause 49: Information and advice
233. Clause 49 places a duty on the Commission to keep the Secretary of State informed about the provision of NHS health care and adult social services in general, and about the carrying on of regulated activities. Subsection (2) allows the Commission to give advice to the Secretary of State on any matters connected with this subject. In particular, the Commission may advise the Secretary of State of any changes it thinks should be made to either the registration requirements (made by regulations under clause 16); the code of practice on HCAIs (issued under clause 17); or statements of standards issued under clause 41. Subsection (4) requires the Commission to give to the Secretary of State any advice or information requested by the Secretary of State in relation to these matters. The clause also allows the Commission to give advice to the Secretary of State, an English NHS body or an English local authority in relation to the establishment or conduct of an inquiry.
Clause 50: Studies as to economy, efficiency etc.
234. Clause 50 enables the Commission to undertake wider studies that are designed to enable it to make recommendations for improving the provision of health care by an English NHS provider, or the provision of adult social services by an English local authority, or the commissioning of health care or adult social services. The Commission may also undertake studies that will enable it to make recommendations for improving the management of a local authority with regard to the provision of adult social services, or the management of an English NHS body
Clause 51: Publication of results of studies under s.50
235. This clause requires the Commission to publish recommendations made and results of studies undertaken under clause 50. The clause also allows regulations to be made by the Secretary of State which set out a procedure for representations to be made to the Commission before any recommendations or reports of studies are published.
Clause 52 Role of the Audit Commission
236. This clause allows the Audit Commission for Local Authorities and the National Health Service in England ('the Audit Commission') to carry out studies relating to health care or English NHS bodies (under clauses 50 and 51) on the Commission's behalf with the Commission's agreement. Where a matter could be considered to fall within the remit of both organisations, as is the case for studies regarding economy, efficiency, and effectiveness in relation to adult social care, subsection (5) directs them to have regard to any guidance issued by the Secretary of State as to who should carry them out.
Clause 53: Reviews of data, studies, and research
237. This clause enables the Commission to review studies and research undertaken by others. It enables the Secretary of State to request such reviews, which the Commission must undertake. Where the Commission conducts a review, it must publish a report.
Clause 54: Publication of information
238. This clause allows the Commission to make information available about the provision of NHS health care, adult social services, and the carrying on of regulated activities.
Clause 55: Additional functions
239. The clause allows the Secretary of State to give additional functions to the Commission through regulations. It sets out the extent of the remit within which the Secretary of State may give the Commission these additional functions. If any of these functions relate to Foundation Trusts then subsection (2) requires the Secretary of State to consult with Monitor first.
CHAPTER 6 - MISCELLANEOUS AND GENERAL
Inspections
Clauses 56-57: Inspections
240. Clause 56 enables the Commission to carry out inspections in relation to its regulatory functions. Its regulatory functions are its registration and review functions under chapters 2 and 3 and most of its functions under chapter 5, such as studies as to economy and efficiency. It cannot carry out inspections purely for the purposes of providing information and advice to the Secretary of State under clause 49 or conducting a review of data, studies or research under clause 53. Regulations under clause 55 will set out whether any additional functions conferred on the Commission under that clause are to be treated as regulatory functions and thereby whether inspections can be carried out in relation to them.
241. Under clause 57, the Secretary of State may set out in regulations how often the Commission should undertake inspections in relation to the Commission's registration functions under Chapter 2, the manner in which they should be carried out and who should carry them out. For instance, the Secretary of State may prescribe that hospitals must be inspected annually for compliance with requirements relating to hygiene and infection controls, by people with particular skills.
242. After carrying out an inspection under clause 56 for the purposes of the Commission's functions under Chapter 2, the Commission is required, under subsection (2) to prepare a report and send a copy of the report to the registered service provider and, if there is one, the registered manager. If any of the premises inspected are owned or controlled by an English local authority or NHS body, they must also be sent a copy of the report.
243. Regulations will set out what procedure should apply to allow people to make representations to the Commission before it publishes details of a report under this clause. As with similar powers in other clauses, the reason for this is to give the reviewed body time to comment and for any comments to be considered by the Commission.
Powers of entry etc.
Clauses 58-61: Powers of entry etc.
244. In carrying out its functions, the Commission will engage with patients and service users and people involved in the provision of care and will also need to inspect relevant premises. Clause 58 enables individuals authorised by the Commission to enter and inspect premises which are, or are believed to be, regulated premises. The clause sets out 'regulated premises' that the Commission can enter and inspect. Premises used wholly or mainly as a private dwelling for the provision of NHS care or an adult social service are excluded. The fact that someone receives a service like domiciliary care does not mean that there is a right of entry (without consent) into that person's home under this clause. 'Premises' also includes vehicles. Individuals exercising these powers must produce appropriate documentation showing they have the authority to enter and inspect premises. Regulated premises are:
- premises used for carrying on a regulated activity;
- premises owned or controlled by an English NHS body or English local authority;
- premises used, or proposed for use, for the provision of NHS healthcare or adult social services;
- premises used, or proposed for use, by any English NHS body in order to carry out its functions.
245. Clause 59 provides further details on the power to enter and inspect premises. It enables individuals authorised by the Commission to:
- examine the premises or the treatment of persons receiving care there;
- inspect and copy records or documents, and require any person holding or accountable for them to produce them;
- have access to, and check the operation of any computer and associated equipment that has been used in connection with any documents or records and, where records are stored on a computer, to require them to be produced in a legible, non-encrypted format;
- seize and remove any documents, records or other items;
- interview the manager or registered service provider, or people who are managing the provision of statutory health or adult social care services that are not subject to regulation;
- interview people working at the premises or people receiving care who consent to be interviewed. This does not limit the Commission's ability to interview, with their consent, other people such as family members or carers if it thinks this would be appropriate.
246. Subject to a number of conditions set out in subsection (3) the authorised person (as long as they are a medical practitioner or registered nurse) may examine any person receiving care at the premises.
247. Subsection (6) imposes a requirement on any person to assist an authorised person and permits the authorised person to take such measurements and photographs, and make such recordings, as that person considers necessary for the exercise of the powers under clause 58 and this clause.
248. Clause 60 gives the Commission a general power to require information, documents, records and other items from bodies and persons listed in subsection (2) if it considers it necessary in order to carry out the Commission's regulatory functions.
249. Under clause 61, regulations may be made that require a prescribed person to provide the Commission with an explanation of: any documents, records or other items inspected, copied or provided under clauses 58-60; any information provided under those clauses; any other documents etc. provided to the Commission in order for the Commission to carry out its regulatory functions; or any other information or documents related to the Commission's regulatory functions. Subsection (3) enables these regulations to set a requirement that individuals must be present at a specified time and place to give an explanation. The Commission will use this power to enable it to discuss any other matters of concern that its reviews and inspections have brought to light with those responsible.
250. Clauses 59 (7), 60(4) and 61(4) make it an offence for a person to obstruct the exercise of any of the Commission's powers under these clauses or the exercise of a power conferred by clause 58, or to fail to comply with any requirement. The penalty on summary conviction is a fine, not exceeding level 4 (£2500) on the standard scale.
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