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
42

85
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;
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(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;
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(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 82, and the offence to which the notice
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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
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dealt with in the notice.
(3)
The regulations may prescribe the time when, and manner in which, any
information is to be published.
86
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 78, the
Secretary of State.
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(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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87
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
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(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
43

(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
88
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
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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.
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(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
89
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—
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(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 90, 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
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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
44

(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).
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(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
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(c)
in any other case, the last known address of the person.
(6)
In this section and in section 90—
(a)
“electronic communication” has the same meaning as in the Electronic
Communications Act 2000 (c. 7),
(b)
“notice” includes any other document, and
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(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.
90
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
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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
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purpose of bringing it to the attention of persons who are likely to be affected
by it.
Further amendments
91
Further amendments relating to Part 1
Schedule 5 (which contains further amendments relating to the provisions of
40
this Part) has effect.

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
45

Interpretation
92
General interpretation of Part 1
(1)
In this Part—
“adult social services” means—
(a)
services which are provided by or pursuant to arrangements
5
made by an English local authority in the exercise of its adult
social services functions, and
(b)
services which are provided by or pursuant to arrangements
made by an English local authority under section 2(1)(b) of the
Local Government Act 2000 (c. 22) and which are similar in
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nature to a service which could be provided by the authority in
the exercise of any of its adult social services functions;
“adult social services functions” means social services functions (within
the meaning of the Local Authority Social Services Act 1970 (c. 42)) so
far as relating to persons aged 18 or over, excluding any function to
15
which Chapter 4 of Part 8 of the Education and Inspections Act 2006
(c. 40) applies;
“the Commission” means the Care Quality Commission;
“cross-border Special Health Authority” means a Special Health
Authority not performing functions only or mainly in respect of
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England or only or mainly in respect of Wales;
“enactment” includes an enactment comprised in subordinate legislation
(within the meaning of the Interpretation Act 1978 (c. 30));
“English local authority” means—
(a)
a county council in England,
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(b)
a metropolitan district council,
(c)
a non-metropolitan district council for an area for which there is
no county council,
(d)
a London borough council,
(e)
the Common Council of the City of London, or
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(f)
the Council of the Isles of Scilly;
“English NHS body” means—
(a)
a Primary Care Trust,
(b)
a Strategic Health Authority,
(c)
a National Health Service trust all or most of whose hospitals,
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establishments and facilities are situated in England,
(d)
an NHS foundation trust, or
(e)
a Special Health Authority performing functions only or mainly
in respect of England;
“English NHS provider” means—
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(a)
a Primary Care Trust,
(b)
a National Health Service trust all or most of whose hospitals,
establishments and facilities are situated in England, or
(c)
an NHS foundation trust;
“health care” has the meaning given by section 5(2) (but see subsection (2)
45
below);
“health or social care” has the meaning given by section 5(4);

Health and Social Care Bill
Part 2 — Regulation of health professions and health and social care workforce
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“Minister of the Crown” has the same meaning as in the Ministers of the
Crown Act 1975 (c. 26);
“NHS care” means health care provided by Primary Care Trusts or by
other persons (whether other English NHS providers or not) pursuant
to arrangements made by Primary Care Trusts;
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“Part 1 offence” means an offence under this Part or under regulations
under this Part;
“prescribed” means prescribed by regulations;
“regulated activity” has the meaning given by section 4;
“regulations” means regulations made by the Secretary of State;
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“regulatory functions”, in relation to the Commission, is to be read in
accordance with section 56(2);
“social care” has the meaning given by section 5(3).
(2)
Except in Chapter 2, any reference in this Part to the provision of health care
includes a reference to—
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(a)
the provision of services connected with the provision of health care,
and
(b)
the promotion and protection of public health.
(3)
Any reference in this Part to a person who carries on a regulated activity
includes a reference to a person who carries it on otherwise than for profit.
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(4)
Any reference in this Part to the provision of health care, or adult social
services, by a person includes a reference to the provision of that care, or those
services, by that person’s agent or sub-contractor.
(5)
In its application to a function conferred on the Commission by regulations
under section 55(1)(b), Chapter 6 has effect as if any reference in Chapter 6 to
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an English NHS body included a reference to a cross-border Special Health
Authority.
Part 2
Regulation of health professions and health and social care workforce
The Office of the Health Professions Adjudicator
30
93
The Office of the Health Professions Adjudicator
(1)
There is to be a body corporate known as the Office of the Health Professions
Adjudicator (referred to in this Part as “the OHPA”).
(2)
The OHPA is to have functions in relation to the professions regulated by—
(a)
the Medical Act 1983 (c. 54), and
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(b)
the Opticians Act 1989 (c. 44).
(3)
Schedule 6 (which makes further provision about the OHPA) has effect.
94
Functions under Medical Act 1983 and Opticians Act 1989
Schedule 7 (which contains amendments of the Medical Act 1983 and the
Opticians Act 1989 providing for certain functions under those Acts relating to
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adjudication to be exercisable by the OHPA) has effect.