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Interaction with other authorities

Clause 62: Interaction with other authorities

251.     This clause gives effect to Schedule 4.

Schedule 4: Interaction with other authorities

252.     Paragraph 1 defines the inspection authorities to which this Schedule applies: they are the five existing criminal justice inspectorates; CIECSS; and the Audit Commission. Paragraph 2 defines inspection functions for the purposes of the Schedule. Paragraph 3 defines a public authority for the purposes of Schedule 4 as any person whose functions are of a public nature (excluding any person carrying out functions in connection with Parliamentary proceedings.)

253.     Paragraph 4 enables the Commission to delegate any of its inspection functions to another public authority. Where the Commission delegates functions, these will be regarded as being carried out by the Commission for the purposes of any other legislation.

254.     Paragraph 5 requires the Commission to produce both an inspection programme setting out the inspections it intends to carry out, and an inspection framework, which sets out how it intends to carry out its inspection and reporting functions. These must be prepared from time to time, or at times specified by order by the Secretary of State. Before preparing these documents, the Commission must consult the Secretary of State, the inspection authorities (as defined under paragraph 1) and anyone else specified by an order made by the Secretary of State (unless they have waived their right to be consulted). The Commission must then send the people it has consulted a copy of the programme or framework. This will provide advanced notice of the Commission's proposals. It will also allow an opportunity for people to raise concerns about duplication with other inspection bodies or about the overall burden of inspection.

255.     The requirements under this paragraph do not prevent the Commission from carrying out unannounced inspections.

256.     Paragraph 6 allows the Commission to give a notice to another inspection authority (or other people specified in an order by the Secretary of State) who proposes to carry out an inspection of a prescribed organisation, where the Commission believes the inspection imposes an unreasonable burden on the organisation. This notice can require the inspection authority not to carry out the inspection in the proposed way, or at all.

257.     The Secretary of State may specify, by order, circumstances in which this power should not apply. The Secretary of State may also give consent for a particular inspection to be undertaken, if he is satisfied that the inspection will not impose an unreasonable burden or will not do so if carried out in a particular way. Further provisions in relation to this paragraph may be made by order of the Secretary of State.

258.     Paragraphs 7 - 10 cover other aspects of the Commission's relationship with other public authorities. Paragraph 7 requires the Commission to co-operate with the inspection authorities or other public authorities specified by an order of the Secretary of State. Paragraph 8 enables the Commission to act jointly with other public authorities. Paragraph 9 enables the Commission to provide advice or assistance to other public authorities. Paragraph 10 allows the Commission to make arrangements with other inspection authorities to carry out inspections on their behalf. These powers allow the Commission to build links with other related public authorities in order to work to minimise the regulatory burden they jointly impose.

Clause 63: Co-ordination of reviews or assessments

259.     Clause 63 requires the Commission to promote effective coordination of reviews and assessments in relation to the carrying on of regulated activities.

Clause 64: Co-operation between the Commission and Welsh Ministers

260.     Clause 64 sets out that the Commission and the Welsh Ministers must work with one another in order to carry out their corresponding functions efficiently and effectively.

Clause 65: Co-operation between the Commission and the Independent Regulator of NHS Foundation Trusts

261.     This clause sets out how the Commission and Monitor should work with one another and clarifies the interface between the Commission and Monitor, whose work relates closely to that of the Commission. It requires the Commission and Monitor to co-operate with one another in carrying out their functions. The Commission must keep Monitor informed about the provision of health care by NHS Foundation Trusts. Monitor must give the Commission any information it has relating to the provision of health care by NHS Foundation Trusts which will assist the Commission in carrying out its functions. The clause also sets out specific material (material relevant to reviews, investigations, and studies) that the Commission must provide to Monitor, on request.

Clause 66: Provision of material to the Comptroller and Auditor General

262.     This clause requires the Commission to provide material relevant to reviews, investigations, or studies that it carries out to the Comptroller and Auditor General on request.

Clauses 67 and 68: Arrangements with Ministers

263.     Clause 67 enables a Minister of the Crown to arrange for the Commission to carry out any of its functions in relation to prescribed health or social care schemes for which the Minister has responsibility. For example, arrangements may be made between the Commission and the Secretary of State for Defence in respect of the provision of health care to the Armed Forces. Clause 68 enables a Northern Ireland Minister to arrange for the Commission to carry out any of its functions which correspond to functions of the Commission and relate to the Northern Ireland health service.


Clause 69: Inquiries

264.     This clause enables the Secretary of State to initiate an inquiry into matters concerning the exercise of any of the Commission's functions. Subsection (2) gives the Secretary of State the power to make the inquiry wholly private. Where no such direction is given, subsection (3) enables the person holding the inquiry to decide whether the inquiry or any part of it should be private. This might be necessary, for example, to protect patient confidentiality.

265.     Subsection (4) applies section 250(2) to (5) of the Local Government Act 1972 to an inquiry undertaken under this clause. This will enable the person holding the inquiry to issue a summons requiring an individual to give evidence or produce any documents in their custody or under their control at a stated time and place. If that person fails to attend (for reasons other than not having the necessary expenses of their visit paid or tendered), then they may be liable to a fine or imprisonment.

266.     Subsection (5) requires reports of inquiries set up under the powers in this clause to be published unless the Secretary of State decides there are exceptional circumstances that render publication inappropriate (for example, publication being prejudicial to any ongoing criminal investigation).


Clauses 70 and 71: Disclosure of confidential personal information / Defence

267.     Clause 70 makes it a criminal offence for any person, including a member or employee of the Commission, to knowingly or recklessly disclose confidential information which identifies an individual, during the lifetime of the individual. The penalty on summary conviction is imprisonment of up to 12 months, or a fine not exceeding the statutory maximum, or both. The penalty on conviction on indictment is imprisonment of up to 2 years, or an unlimited fine, or both. The clause applies to all of the Commission's functions, whereas previously a similar provision only applied to CHAI as the regulator of health services

268.     Subsections (1)-(3) of clause 71 set out defences to a charge under clause 70. It is a defence to prove that any of the circumstances listed in subsection (2) (for example, where the information does not identify an individual, or where the individual concerned had given their consent to the information being made available) applied or that the person charged reasonably believed they applied. It is also a defence to prove that the disclosure was made for a purpose in subsection (3), for example, in connection with a criminal investigation. Subsection (4) requires that, where someone offers one of these defences in response to a charge brought under clause 70 and evidence is adduced which is sufficient to raise an issue with respect to the defence, the defence is to be regarded as satisfied unless the prosecution proves beyond reasonable doubt that it is not. Subsection (5) sets out when an individual is to be regarded as identified for the purposes of this defence.

Clause 72: Use of information etc.

269.     This clause sets out that the Commission may use information, documents, or records obtained or produced in carrying out its functions for any of its other functions (subject to the limitations in relation to the disclosure of confidential personal information under clause 70).

Clause 73: Permitted disclosures

270.     The Commission may disclose any information it obtains in the course of carrying out its functions where any of the circumstances set out in subsection (3) apply (for example, where the information has already been lawfully disclosed to the public, or where the disclosure is necessary to protect the welfare of any individual). Where none of those circumstances applies, the Commission may only disclose information that relates to an individual if that individual has consented to the disclosure, or the information disclosed does not identify the individual.

Clause 74: Code of practice on confidential personal information

271.     This clause places the Commission under a statutory duty to publish a code of practice in relation to how it will obtain, use, handle and disclose confidential personal information (defined as information that is obtained by the Commission in confidence and which identifies an individual). The Commission must consult the National Information Governance Board for Health and Social Care and anyone else it considers appropriate before publishing a code under this clause.


Clause 75: Publication of programme of reviews etc.

272.     This clause requires the Commission to publish a document that sets out various reviews and studies that it intends to carry out under clauses 44, 50 , and 53. The Secretary of State may specify through an order when this should be done. Before preparing a document, the Commission must consult the Secretary of State and any other person specified by order of the Secretary of State. Once prepared, the Commission must send them a copy of the document.

Clause 76: Failure by the Commission in discharge of its functions

273.     If the Secretary of State considers that the Commission is failing to carry out any of its functions, or to carry them out properly, then clause 76 enables the Secretary of State to issue a direction to the Commission with which it must comply. The clause also enables the Secretary of State to carry out functions of the Commission or arrange for a third party to do so if the Secretary of State holds the Commission to be in default. This might be needed not necessarily because of any fault on the Commission's behalf but possibly due to circumstances outside its control, for example, a serious infection affecting many of its staff and therefore its ability to perform its duties.

Clause 77: Reports for each financial year etc.

274.     This clause places a duty on the Commission to report annually to Parliament on a number of areas. These are:

  • the way it has exercised its functions during the financial year;

  • the provision of NHS health care;

  • the provision of adult social services by or for registered service providers and managers;

  • the carrying on of activities regulated by the Commission.

275.     These reports do not have to be contained in separate documents but the Secretary of State may require the Commission to handle any or all of these areas separately where more than one are covered in a single report.

276.     The Commission's functions under the Mental Health Act are excluded from these reports. The Commission will produce a separate annual report on the operation of the Mental Health Act. Previously MHAC had to report bi-annually on the operation of the Mental Health Act.

277.     All reports under this clause must be laid before Parliament and sent to the Secretary of State. The Commission is also required to provide any other additional reports and information on the exercise of its functions that the Secretary of State may request during the year.

Clause 78: Reports and information

278.     This clause requires the Commission to make copies of any report it publishes available to view at its offices. It must provide copies of the report on request. The Commission may also provide other information that a person might request that is relevant to the discharge of its functions. It can charge a reasonable fee for providing information or copies of reports.


Clause 79: Fees

279.     This clause enables the Commission, with the consent of the Secretary of State, to make provision for the payment of a fee in relation to certain registration functions under Chapter 2 and other prescribed functions under Part 1. It is intended that where fees are charged, these will relate to the costs incurred by the Commission in exercising the functions to which they relate and there will not be cross subsidy of any of the Commission's other functions.

280.     The Commission will be able to decide how much the fees will be, how they will be calculated, and details such as when they should be paid. The Commission may charge different fees in different circumstances, or to different people. People liable to pay fees are required to give the Commission such information it thinks is necessary in order to determine what fees should apply to them.

281.     The Secretary of State will be able to set out in regulations matters that the Commission should take into account when it determines what fees are payable and how it should make its policy on fees available. The Secretary of State can also make alternative provision on fees if he is of the view that it is necessary or desirable for him to do so.


Clauses 80 and 81: Penalty notices

282.     Clause 80 gives the Commission power to issue penalty notices. This is a new power that is not available to CHAI and CSCI under the existing law. Where a person commits an offence under Part 1, or under regulations under Part 1, or where regulations prescribe, the Commission may give the person a penalty notice. This is an invitation to pay a penalty instead of being prosecuted for the offence. The Commission might, for example, issue a penalty notice where the Commission becomes aware of an offence that has been committed in the past (such as failure by someone to comply with one of the conditions of their registration) but is satisfied that the offence was relatively minor and that they are now complying with the condition in question. In those circumstances the person may pay the penalty specified in the penalty notice as recognition of the offence and the Commission would then take no further action in relation to that offence. If, however, that person subsequently breached the same condition of their registration then they would be liable to be prosecuted for the offence.

283.     The Commission will receive any amounts paid, but will then pay them to the Secretary of State who will pay them into the Consolidated Fund. It is our intention that, where appropriate, monies collected via fines will be recovered and returned to the local service economy.

284.     Clause 81 confers a regulation-making power which allows the procedural details about penalty notices to be set out in regulations.

Clause 82: Guidance by the Commission in relation to enforcement action

285.     Clause 82 requires the Commission to publish guidance on how it will exercise its enforcement powers under Part 1. This guidance is expected to cover how the Commission intends to work with Monitor in relation to enforcement action involving NHS Foundation Trusts. The Commission must consult on this guidance, and regulations may set out any particular people that it must include in such a consultation.

Clause 83: Publication of information relating to enforcement action etc.

286.     Clause 83 enables regulations to be made which will either authorise or require the Commission to publish details of enforcement action it has taken. The regulations may set out what information the Commission can or must publish in each instance, as well as when and how it must publish it. This will enable the Commission to make information available to the public about the action it has taken using its power under Part 1.

287.     If information is to be published about warning notices, the regulations must allow people to make representations to the Commission before such information is published. This is because there is no right of appeal in respect of a warning notice.

Clause 84: Proceedings for offences

288.     Clause 84 provides that only the Commission or, if he is carrying out any of the Commission's functions, the Secretary of State, can commence proceedings in relation to offences under Part 1 or under regulations under it without written consent of the Attorney General.

289.     Subsection (2) provides that a prosecution must be commenced within 12 months from the date on which there was sufficient evidence to prosecute, with a long stop of 3 years from the date on which the offence was committed.

Clause 85: Offences by bodies corporate

290.     Clause 85 deals with corporate liability. If an offence under this Part of the Bill, or regulations made under it, is proved to have been committed with the consent or connivance of an officer of a body corporate then they, as well as the company, are guilty of the offence.

Clause 86: Unincorporated associations

291.     Clause 86 contains provisions dealing with certain procedural matters where criminal proceedings are brought against unincorporated associations. Subsection (1) provides that proceedings are to be brought in the name of the association (and not any of the individual members). However, subsection (5) makes clear that if an offence is proved to have been committed with the consent or connivance of an officer of the association or a member of its governing body, then they, as well as the association, are guilty of the offence. Individual officers or members of the association will not be able to escape prosecution simply because the association is liable; both may be liable for prosecution.

Service of documents

Clauses 87 and 88: Service of documents

292.     Where the Commission serves notices or other documents on people, clause 87 requires that this be done in person or by registered or recorded delivery. Under clause 12, regulations may state that the registered person must notify the Commission of the address it wishes to be used for the service of documents. Notices or documents sent by post can be assumed to have been delivered after three days unless the person can prove this was not the case. Under clauses 87 and 88 notices may be served electronically if the person receiving the notice has given their consent and provided a suitable address for these purposes.

Further amendments relating to Part 1

Clause 89 and Schedule 5: Further amendments to Part 1

293.     Clause 89 gives effect to Schedule 5. Schedule 5 amends various other legislation to update references to CHAI, CSCI, and MHAC, and replace them with references to the Care Quality Commission.


Clause 90: Interpretation

294.     Clause 90 sets out the meaning of various terms used within this Part of the Bill.


The Office of the Health Professions Adjudicator

Clause 91: The Office of the Health Professions Adjudicator

295.     Clause 91 establishes the OHPA as a body corporate. It is to have functions relating to doctors, optometrists, dispensing opticians, student opticians and optical businesses (i.e. the professions regulated by the Medical Act 1983 and the Opticians Act 1989). It also gives effect to Schedule 6 which makes detailed provision for the constitution and membership of the OHPA. The establishment of this body requires a number of consequential amendments to other enactments. These are set out in paragraphs 16 and 17 of Schedule 10.

Schedule 6: The Office of the Health Professions Adjudicator

296.     The schedule makes detailed provision for the constitution and membership of the OHPA.

297.     Paragraphs 2 and 3 set out the status of the body and that it is to have the powers necessary to enable it to carry out its functions.

298.     The membership of the body is set out in paragraphs 4 to 10 and must include a legally qualified chair appointed by the Privy Council, at least one but no more than three non-executive members, and at least one but no more than three executive members, subject to the proviso that there are not more executive than non-executive members. The Privy Counsel must make regulations about the precise number of executive and non-executive members. Initially the executive members will be appointed by the Privy Council. Thereafter they will be appointed by the OHPA. The chair and other members may be removed from office by the Privy Council on the grounds of incapacity or misbehaviour, but will otherwise hold and vacate office in accordance with the terms of their appointment.

299.     Paragraphs 11 and 12 deal with the procedures to be followed by the OHPA and provide that the OHPA may regulate its own procedures. Proceedings of the OHPA are not affected by circumstances such as vacancies in its membership or defects in the appointment of members.

300.     Paragraph 13 requires the OHPA to maintain a system for the declaration and registration of members' private interests and to publish entries recorded in the register.

301.      Under paragraph 14, the Secretary of State is to determine the remuneration and allowances payable to the chair and other members. The Secretary of State may also require the OHPA to make provision for pensions and, in certain circumstances, to pay compensation to a person who has ceased to hold office as chair of the OHPA. Under paragraphs 15 and 16, amendments to the Superannuation Act 1972 will enable members to be included in the civil service pension scheme. Under paragraph 17, the OHPA may appoint and pay such employees as it considers appropriate and on such terms as it determines.

302.     Paragraph 18 provides that the Secretary of State and DHSSPSNI may make payments to the OHPA. The Secretary of State and DHSSPSNI can also make loans to the OHPA. Paragraph 18(4) requires Treasury consent to the amount and terms of loans made to the OHPA by the Secretary of State. Paragraph 18(6) requires the consent of the Department of Finance and Personnel in Northern Ireland to the amount and terms of loans made to the OHPA by DHSSPSNI. OHPA will have no other powers to borrow money.

303.     Under paragraph 19, the OHPA must keep accounts in such a form as determined by the Secretary of State. Copies of annual accounts must be sent to the Comptroller and Auditor General, who will lay copies of the accounts and of his report on them before Parliament. A copy of the accounts must also be sent to Secretary of State. DHSSPSNI will lay a copy of the accounts before the Northern Ireland Assembly. Under paragraph 20, the OHPA must also prepare an annual report for each financial year on how it has carried out its functions. The Privy Council may give directions as to the content of the report. The Secretary of State must lay it before Parliament. DHSSPSNI must lay it before the Northern Ireland Assembly.

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Prepared: 16 November 2007