Health and Social Care Bill

House of Commons

Session 2007 - 08
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Health and Social Care Bill

Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983
115

5
In section 64H of the MHA (certificates: supplementary provision), in
subsections (4) and (5), for “appropriate national authority” substitute
“regulatory authority”.
6     (1)
Section 118 of the MHA (code of practice) is amended as follows.
      (2)
In subsection (2), for “appointed for the purposes of this section by the
5
Secretary of State” substitute “appointed for the purposes of this section by
the regulatory authority”.
      (3)
After subsection (6) insert—
“(7)
The Care Quality Commission may at any time make proposals to
the Secretary of State as to the content of the code of practice which
10
the Secretary of State must prepare, and from time to time revise,
under this section in relation to England.”
7     (1)
Section 119 of the MHA (practitioners approved for Part 4 and section 118)
is amended as follows.
      (2)
In subsection (1)—
15
(a)
for “The Secretary of State” substitute “The regulatory authority”,
(b)
for “he” substitute “it”, and
(c)
for “by him” substitute “by the authority”.
      (3)
In subsection (2), omit “by the Secretary of State”.
8
For section 120 of the MHA substitute—
20
“120
General protection of relevant patients
(1)
The regulatory authority must keep under review and, where
appropriate, investigate the exercise of the powers and the discharge
of the duties conferred or imposed by this Act so far as relating to the
detention of patients or their reception into guardianship or to
25
relevant patients.
(2)
Relevant patients are—
(a)
patients liable to be detained under this Act,
(b)
community patients, and
(c)
patients subject to guardianship.
30
(3)
The regulatory authority must make arrangements for persons
authorised by it to visit and interview relevant patients in private—
(a)
in the case of relevant patients detained under this Act, in the
place where they are detained, and
(b)
in the case of other relevant patients, in hospitals and
35
regulated establishments and, if access is granted, other
places.
(4)
The regulatory authority must also make arrangements for persons
authorised by it to investigate any complaint as to the exercise of the
powers or the discharge of the duties conferred or imposed by this
40
Act in respect of a patient who is or has been detained under this Act
or who is or has been a relevant patient.
(5)
The arrangements made under subsection (4)—

Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983
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(a)
may exclude matters from investigation in specified
circumstances, and
(b)
do not require any person exercising functions under the
arrangements to undertake or continue with any
investigation where the person does not consider it
5
appropriate to do so.
(6)
Where any such complaint as is mentioned in subsection (4) is made
by a Member of Parliament or a member of the National Assembly
for Wales, the results of the investigation must be reported to the
Member of Parliament or member of the Assembly.
10
(7)
For the purposes of a review or investigation under subsection (1) or
the exercise of functions under arrangements made under this
section, a person authorised by the regulatory authority may at any
reasonable time—
(a)
visit and interview in private any patient in a hospital or
15
regulated establishment,
(b)
if the authorised person is a registered medical practitioner or
approved clinician, examine the patient in private there, and
(c)
require the production of and inspect any records relating to
the detention or treatment of any person who is or has been
20
detained under this Act or who is or has been a community
patient or a patient subject to guardianship.
(8)
The regulatory authority may make provision for the payment of
remuneration, allowances, pensions or gratuities to or in respect of
persons exercising functions in relation to any review or
25
investigation for which it is responsible under subsection (1) or
functions under arrangements made by it under this section.
(9)
In this section “regulated establishment” means—
(a)
an establishment in respect of which a person is registered
under Part 2 of the Care Standards Act 2000, or
30
(b)
premises used for the carrying on of a regulated activity
(within the meaning of Part 1 of the Health and Social Care
Act 2008) in respect of which a person is registered under
Chapter 2 of that Part.”
9
After section 120 of the MHA insert—
35
“120A
Investigation reports
(1)
The regulatory authority may publish a report of a review or
investigation carried out by it under section 120(1).
(2)
The Secretary of State may by regulations make provision as to the
procedure to be followed in respect of the making of representations
40
to the Care Quality Commission before the publication of a report by
the Commission under subsection (1).
(3)
The Secretary of State must consult the Care Quality Commission
before making any such regulations.
(4)
The Welsh Ministers may by regulations make provision as to the
45
procedure to be followed in respect of the making of representations

Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983
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to them before the publication of a report by them under subsection
(1).
120B
Action statements
(1)
The regulatory authority may direct a person mentioned in
subsection (2) to publish a statement as to the action the person
5
proposes to take as a result of a review or investigation under section
120(1).
(2)
The persons are—
(a)
the managers of a hospital within the meaning of Part 2 of
this Act;
10
(b)
a local social services authority;
(c)
persons of any other description prescribed in regulations.
(3)
Regulations may make further provision about the content and
publication of statements under this section.
(4)
“Regulations” means regulations made—
15
(a)
by the Secretary of State, in relation to England;
(b)
by the Welsh Ministers, in relation to Wales.
120C
Provision of information
(1)
This section applies to the following persons—
(a)
the managers of a hospital within the meaning of Part 2 of
20
this Act;
(b)
a local social services authority;
(c)
persons of any other description prescribed in regulations.
(2)
A person to whom this section applies must provide the regulatory
authority with such information as the authority may reasonably
25
request for or in connection with the exercise of its functions under
section 120.
(3)
A person to whom this section applies must provide a person
authorised under section 120 with such information as the person so
authorised may reasonably request for or in connection with the
30
exercise of functions under arrangements made under that section.
(4)
This section is in addition to the requirements of section 120(7)(c).
(5)
“Information” includes documents and records.
(6)
“Regulations” means regulations made—
(a)
by the Secretary of State, in relation to England;
35
(b)
by the Welsh Ministers, in relation to Wales.
120D
Annual reports
(1)
The regulatory authority must publish an annual report on its
activities in the exercise of its functions under this Act.
(2)
The report must be published as soon as possible after the end of
40
each financial year.
(3)
The Care Quality Commission must send a copy of its annual report
to the Secretary of State who must lay the copy before Parliament.

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Schedule 3 — Amendments of Mental Health Act 1983
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(4)
The Welsh Ministers must lay a copy of their annual report before the
National Assembly for Wales.
(5)
In this section “financial year” means—
(a)
the period beginning with the date on which section 48 of the
Health and Social Care Act 2008 comes into force and ending
5
with the next 31 March following that date, and
(b)
each successive period of 12 months ending with 31 March.”
10
In section 129 of the MHA (obstruction), in subsection (1), after paragraph
(c) insert—
“(ca)
fails to comply with a request made under section 120C; or”.
10
11    (1)
Section 134 of the MHA (correspondence of patients) is amended as follows.
      (2)
In subsection (3), after paragraph (c) insert—
“(ca)
the Care Quality Commission;”.
      (3)
In subsection (9), after “this section” insert “and section 134A”.
12
After section 134 of the MHA insert—
15
“134A
Review of decisions to withhold correspondence
(1)
The regulatory authority must review any decision to withhold a
postal packet (or anything contained in it) under subsection (1)(b) or
(2) of section 134 if an application for a review of the decision is
made—
20
(a)
in a case under subsection (1)(b) of that section, by the
patient; or
(b)
in a case under subsection (2) of that section, either by the
patient or by the person by whom the postal packet was sent.
(2)
An application under subsection (1) must be made within 6 months
25
of receipt by the applicant of the notice referred to in section 134(6).
(3)
On an application under subsection (1), the regulatory authority may
direct that the postal packet (or anything contained in it) is not to be
withheld.
(4)
The managers of the hospital concerned must comply with any such
30
direction.
(5)
The Secretary of State may by regulations make provision in
connection with the making to and determination by the Care
Quality Commission of applications under subsection (1), including
provision for the production to the Commission of any postal packet
35
which is the subject of such an application.
(6)
The Welsh Ministers may by regulations make provision in
connection with the making to them of applications under
subsection (1), including provision for the production to them of any
postal packet which is the subject of such an application.”
40
13
In section 145 of the MHA (general interpretation), in subsection (1), insert
at the appropriate place—
“ “the regulatory authority” means—
(a)
in relation to England, the Care Quality Commission;

Health and Social Care Bill
Schedule 4 — Interaction with other authorities
Part 1 — Interpretation
119

(b)
in relation to Wales, the Welsh Ministers;”.
Schedule 4
Section 62

Interaction with other authorities
Part 1
Interpretation
5
Inspection authorities
1     (1)
In this Schedule references to inspection authorities are to be read in
accordance with sub-paragraph (2) or (3), as the case may be.
      (2)
For the purposes of paragraph 5 or 6 the inspection authorities are—
(a)
Her Majesty’s Chief Inspector of Prisons,
10
(b)
Her Majesty’s Chief Inspector of Constabulary,
(c)
Her Majesty’s Chief Inspector of the Crown Prosecution Service,
(d)
Her Majesty’s Chief Inspector of the National Probation Service for
England and Wales,
(e)
Her Majesty’s Chief Inspector of Court Administration,
15
(f)
Her Majesty’s Chief Inspector of Education, Children’s Services and
Skills, and
(g)
the Audit Commission for Local Authorities and the National Health
Service in England.
      (3)
For the purposes of paragraph 7 the inspection authorities are—
20
(a)
Her Majesty’s Chief Inspector of Prisons,
(b)
Her Majesty’s Inspectors of Constabulary,
(c)
Her Majesty’s Chief Inspector of the Crown Prosecution Service,
(d)
Her Majesty’s Inspectorate of the National Probation Service for
England and Wales,
25
(e)
Her Majesty’s Inspectorate of Court Administration,
(f)
Her Majesty’s Chief Inspector of Education, Children’s Services and
Skills, and
(g)
the Audit Commission for Local Authorities and the National Health
Service in England.
30
Inspection functions
2
In this Schedule “inspection functions” means functions relating to, or
connected with, inspections carried out by the Commission under section
56.
Public authorities
35
3     (1)
In this Schedule “public authority”—
(a)
includes any person certain of whose functions are functions of a
public nature, but

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Schedule 4 — Interaction with other authorities
Part 2 — Exercise of functions
120

(b)
does not include either House of Parliament or a person exercising
functions in connection with proceedings in Parliament.
      (2)
Subject to paragraph 9(3), references in this Schedule to a public authority do
not include a public authority outside the United Kingdom.
      (3)
In relation to a particular act, a person is not a public authority by virtue of
5
sub-paragraph (1) if the nature of the act is private.
Part 2
Exercise of functions
Delegation of inspection functions to public authorities
4     (1)
The Commission may delegate any of its inspection functions (to such extent
10
as it may determine) to another public authority.
      (2)
If the carrying out of an inspection is delegated under sub-paragraph (1) it is
nevertheless to be regarded for the purposes of any enactment as carried out
by the Commission.
Inspection programmes and inspection frameworks
15
5     (1)
The Commission must from time to time, or at such times as the Secretary of
State may specify by order, prepare—
(a)
a document setting out what inspections it proposes to carry out (an
“inspection programme”), and
(b)
a document setting out the manner in which it proposes to exercise
20
its functions of inspecting and reporting (an “inspection
framework”).
      (2)
Before preparing an inspection programme or an inspection framework the
Commission must consult—
(a)
the Secretary of State,
25
(b)
the inspection authorities, and
(c)
any other person or body specified by an order made by the
Secretary of State,

and it must send to each of those persons or bodies a copy of each
programme or framework once it is prepared.
30
      (3)
The Secretary of State may by order specify the form that inspection
programmes or inspection frameworks are to take.
      (4)
The Commission may determine that any document or combination of
documents prepared for the purposes of any other enactment or enactments
is to be treated as a document prepared for the purposes of sub-paragraph
35
(1)(b) (so long as any requirements applying under or by virtue of this
paragraph are complied with in relation to the document or documents
concerned).
      (5)
Nothing in any inspection programme or inspection framework is to be read
as preventing the Commission from making visits without notice.
40

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Schedule 4 — Interaction with other authorities
Part 2 — Exercise of functions
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Inspections by other inspectors of activities within Commission’s remit
6     (1)
If—
(a)
a specified inspector is proposing to carry out an inspection that
would involve inspecting a specified organisation, and
(b)
the Commission considers that the proposed inspection would
5
impose an unreasonable burden on the specified organisation, or
would do so if carried out in a particular way,

the Commission must, subject to sub-paragraph (6), give a notice to the
specified inspector requiring the inspector not to carry out the proposed
inspection, or not to carry it out in that way.
10
      (2)
In this paragraph “specified inspector” means—
(a)
an inspection authority, or
(b)
any other person or body specified by order made by the Secretary
of State.
      (3)
In this paragraph “specified organisation” means a person or body specified
15
by order made by the Secretary of State.
      (4)
A person or body may be specified under sub-paragraph (3) in relation to
particular functions or particular activities.
      (5)
In the case of a person or body so specified, sub-paragraph (1)(a) is to be read
as referring to an inspection that would involve inspecting the discharge by
20
that person or body of any of the functions, or the carrying on by that person
or body of any of the activities, in relation to which it is specified.
      (6)
The Secretary of State may by order specify cases or circumstances in which
a notice need not, or may not, be given under this paragraph.
      (7)
Where a notice is given under this paragraph, the proposed inspection is not
25
to be carried out, or (as the case may be) is not to be carried out in the manner
mentioned in the notice; but this is subject to sub-paragraph (8).
      (8)
The Secretary of State, if satisfied that the proposed inspection—
(a)
would not impose an unreasonable burden on the specified
organisation in question, or
30
(b)
would not do so if carried out in a particular manner,

may give consent to the inspection being carried out, or being carried out in
that manner.
      (9)
The Secretary of State may by order make provision supplementing that
made by this paragraph, including in particular—
35
(a)
provision about the form of notices;
(b)
provision prescribing the period within which notices are to be
given;
(c)
provision prescribing circumstances in which notices are, or are not,
to be made public;
40
(d)
provision for revising or withdrawing notices;
(e)
provision for setting aside notices not validly given.
Co-operation
7
The Commission must co-operate with—