House of Commons Public Bill Committee Proceedings

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Session 2008 - 09
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Other Bills before Parliament

395

SUPPLEMENT TO THE VOTES AND PROCEEDINGS

Monday 12 October 2009

Report Stage Proceedings

Health Bill [Lords], As Amended

NEW clauses

De-authorisation of NHS foundation trusts

Secretary Andy Burnham

Added on division  NC12

To move the following Clause:—

‘(1)
In the National Health Service Act 2006 after section 52 insert—

“52A
Application of sections 52B to 52E

(1)
Sections 52B to 52E apply to—

(a)
an NHS foundation trust authorised under section 35 on an

application under section 33;

(b)
an NHS foundation trust established under section 56 to which

subsection (2) applies.

(2)
This subsection applies to an NHS foundation trust if—

(a)
at least one of the trusts on whose application the NHS

foundation trust was established was an NHS foundation trust

within subsection (1)(a), or was an NHS trust all or most of

whose hospitals, establishments and facilities were in England,

or

(b)
the NHS foundation trust is the result of a succession of mergers

under section 56, any of which involved an NHS foundation trust

within subsection (1)(a) or an NHS trust all or most of whose

hospitals, establishments and facilities were in England.

52B
De-authorisation: regulator’s notice

(1)
The regulator may give the Secretary of State a notice under this section

if it is satisfied that—

(a)
an NHS foundation trust to which this section applies is

contravening or failing to comply with, or has contravened or

failed to comply with, any term of its authorisation or any

requirement imposed on it under any enactment, and

(b)
the seriousness of the contravention or failure, or, if there has

been more than one, of any of them taken together, is such that it

Report Stage Proceedings: 12 October 2009
396

Health Bill [Lords], continued

would justify the Secretary of State making an order under

section 52D.

(2)
The notice must be in writing.

(3)
With the notice the regulator must give the Secretary of State a report

stating the reasons why it is satisfied as mentioned in subsection (1).

(4)
Before giving a notice under this section, the regulator must consult first

the Secretary of State (unless the notice follows a request by the

Secretary of State under section 52E) and then—

(a)
the trust,

(b)
any Strategic Health Authority in whose area the trust has

hospitals, establishments or facilities, and

(c)
any other person to which the trust provides goods or services

under this Act and which the regulator considers it appropriate to

consult.

52C
Grounds for de-authorisation notice

(1)
In determining under section 52B(1)(b) whether the making of an order

would be justified, and in determining whether to give a notice under that

section, the regulator must consider these matters (among others)—

(a)
the health and safety of patients;

(b)
the quality of the provision by the trust of goods and services;

(c)
the financial position of the trust;

(d)
the way it is being run.

(2)
The regulator must publish guidance as to the matters (including those

mentioned in subsection (1)) that it proposes to consider in making those

determinations.

(3)
Before publishing any guidance under this section, including any revised

guidance, the regulator must consult—

(a)
the Secretary of State,

(b)
each NHS foundation trust to which this section applies,

(c)
each NHS trust intending to make an application to become an

NHS foundation trust, and

(d)
such other persons as the regulator considers appropriate.

52D
De-authorisation

(1)
If the regulator gives notice under section 52B in relation to a trust, the

Secretary of State must make an order for it to cease to be an NHS

foundation trust.

(2)
An order made under subsection (1) must specify the date when it is to

take effect, which must be within the period of 5 working days beginning

with the day on which it is made.

(3)
On an order under subsection (1) taking effect in relation to a body, it

ceases to be an NHS foundation trust and a public benefit corporation and

becomes a National Health Service trust.

(4)
The order must specify, in relation to the trust, the matters mentioned in

paragraph 5(1)(a) to (c) of Schedule 4 and, where the trust has a

significant teaching commitment, the matters mentioned in paragraph

5(1)(d).

Report Stage Proceedings: 12 October 2009
397

Health Bill [Lords], continued

(5)
The order may provide for any provision under subsection (4) specifying

the number of executive directors and non-executive directors to take

effect at the end of a period specified in the order.

(6)
Schedule 8A makes further provision about trusts in respect of which an

order is made under subsection (1).

(7)
If it appears to the Secretary of State to be necessary in order to comply

with provision made under subsection (4), or made by regulations under

paragraph 4 of Schedule 4, the Secretary of State may by order—

(a)
terminate the office of any executive or non-executive director of

the trust;

(b)
appoint a person to be an executive or non-executive director of

the trust.

(8)
Within seven days after the day on which the Secretary of State makes an

order under subsection (1) the regulator must publish its report under

section 52B(3).

(9)
In this section “working day” means any day which is not Saturday,

Sunday, Christmas Day, Good Friday or a day which is a bank holiday in

England and Wales under the Banking and Financial Dealings Act 1971.

52E
Secretary of State’s request

(1)
If it appears to the Secretary of State that there are grounds for the

regulator to be satisfied as mentioned in section 52B(1), the Secretary of

State may request the regulator in writing to consider exercising its power

to give a notice under that section.

(2)
A request under this section must—

(a)
specify the NHS foundation trust to which it relates, and

(b)
state the grounds relied on by the Secretary of State.

(3)
The Secretary of State must lay before Parliament any request under this

section.

(4)
If within the required period the regulator does not give a notice under

section 52B in response to a request under this section, it must, within

that period, publish its reasons for not doing so with a statement as to how

it has complied with section 52C(1).

(5)
The required period is—

(a)
14 days beginning with the day after the regulator receives the

request, or

(b)
any longer period specified in the request.

(6)
The Secretary of State may by order extend or further extend the required

period.”

(2)
Schedule 2 (which inserts Schedule 8A to the National Health Service Act 2006,

which makes provision about de-authorised NHS foundation trusts) has effect.’.

Report Stage Proceedings: 12 October 2009
398

Health Bill [Lords], continued

Private patient income of mental health foundation trusts

Secretary Andy Burnham

Added  NC13

To move the following Clause:—

‘(1)
Section 44 of the National Health Service Act 2006 (c. 41) (private health care)

is amended as follows.

(2)
In subsection (2)—

(a)
after “not greater than” insert “— (a)”;

(b)
at the end insert “, or

(b)
in the case of a mental health foundation trust designated

under subsection (2A), that proportion or 1.5% if

greater.”

(3)
After subsection (2) insert—

“(2A)
An authorisation of an NHS foundation trust which was an NHS trust

must designate it as a mental health foundation trust for the purposes of

this section if it appears to the regulator that it provides goods or services

only or mainly for the prevention, diagnosis or treatment of any disorder

or disability of the mind or for the benefit in any other way of people

suffering from a disorder or disability of the mind.”’.

Payments in respect of costs of optical appliances

Secretary Andy Burnham

Added  nc14

To move the following Clause:—

‘Section 180(2)(c) of the National Health Service Act 2006 (c. 41) (payments in

respect of costs of optical appliances for persons aged 60 or over) is omitted.’

Purchase of tobacco on behalf of children

Mike Penning

Mr Stephen O’Brien

Negatived on division  NC1

To move the following Clause:—

‘After section 7 (2) of the Children and Young Persons Act 1993 (c. 12) (sale of

tobacco, etc. to persons under (eighteen)) insert—

“(2A)
A person commits an offence if he buys or attempts to buy tobacco on

behalf of an individual aged under 18.

(2B)
Where a person is charged with an offence under subsection (2A) it is a

defence that he had no reason to suspect that the individual was aged

under 18.

Report Stage Proceedings: 12 October 2009
399

Health Bill [Lords], continued

(2C)
A person guilty of an offence under this section is liable on summary

conviction to a fine not exeeding level 5 on the standard scale.”.’.

Nicotine replacement therapy

Mike Penning

Mr Stephen O’Brien

Not selected  NC2

To move the following Clause:—

‘Within two months of the passing of this Act, the Secretary of State shall set out

guidance for consultation with appropriate stakeholders to provide greater access

to nicotine replacement therapy for members of the public.’.

Tobacco smuggling

Mike Penning

Mr Stephen O’Brien

Not selected  NC3

To move the following Clause:—

‘Within two months of the passing of this Act, the Secretary of State shall

establish a committee of appropriate stakeholders to propose new approaches to

reduce the prevalence of tobacco smuggling.’.

Purchase of tobacco on behalf of children

Sandra Gidley

Dr John Pugh

Not called  NC4

To move the following Clause:—

‘After section 7(2) of the Children and Young Persons Act 1933 (c. 12) (sale of

tobacco, etc, to persons under (eighteen)) insert—

“2A
Purchase of tobacco on behalf of children

(1)
A person commits an offence if—

(a)
he buys or attempts to buy tobacco on behalf of an individual

aged under 18, or

(b)
where he is a member of a club, on behalf of an individual aged

under 18 he—

Report Stage Proceedings: 12 October 2009
400

Health Bill [Lords], continued

(i)
makes arrangements whereby tobacco is supplied to him

or to his order by or on behalf of the club, or

(ii)
attempts to make such arrangements.

(2)
A person (“the relevant person”) commits an offence if—

(a)
he buys or attempts to buy tobacco for consumption on relevant

premises by an individual aged under 18, or

(b)
where he is a member of a club—

(i)
by some act or default of his, tobacco is supplied to him,

or to his order, by or on behalf of the club for

consumption on relevant premises by an individual aged

under 18, or

(ii)
he attempts to have tobacco so supplied for such

consumption.

(3)
Where a person is charged with an offence under paragraph (1) or (2) it

is a defence that he had no reason to suspect that the individual was aged

under 18.

(4)
A person guilty of an offence under this subsection is liable on summary

conviction—

(a)
in the case of an offence under paragraph (1), to a fine not

exceeding level 3 on the standard scale, and

(b)
in the case of an offence under paragraph (2), to a fine not

exceeding level 5 on the standard scale.”’.

NHS Health Tribunal

Sandra Gidley

Dr John Pugh

Not selected  NC5

To move the following Clause:—

‘(1)
There shall be an NHS Health Tribunal in England and Wales.

(2)
In this chapter “NHS Health Tribunal” means a Tribunal established using the

meaning and powers described by the Tribunals, Courts and Enforcement Act

2007 (c. 15).

(3)
The NHS Tribunal shall—

(a)
enforce the NHS Constitution;

(b)
exercise its authority in relation to bodies defined in section 2(1) of this

Act;

(c)
exercise its authority pursuant to the performance of its NHS functions as

defined in section 2(3) of this Act;

(d)
exercise its authority in relation to persons providing NHS Services as

defined in section 2(7) of this Act.’.

Report Stage Proceedings: 12 October 2009
401

Health Bill [Lords], continued

Discolosure of tobacco industry promotional and research activity

Frank Dobson

Mr Kevin Barron

Dr Evan Harris

Dr Doug Naysmith

Ms Diane Abbott

David Heyes

Not moved  NC6

To move the following Clause:—

‘(1)
The Secretary of State shall make regulations to require a business which in the

course of its activity sells a tobacco product or causes one to be sold to disclose

details of its marketing and research activities.

(2)
Disclosure shall consist of but is not limited to—

(a)
the total amount spent on distribution, advertising and selling costs

deducted from corporation tax;

(b)
distribution costs;

(c)
promotional allowances at retail;

(d)
competition prizes at retail;

(e)
tobacco display gantries at retail;

(f)
speciality item distribution;

(g)
brand development;

(h)
packaging design;

(i)
online marketing activity;

(j)
advertising in specialist trade press;

(k)
corporate social responsibility activities;

(l)
market research;

(m)
product research; and

(n)
any other marketing and research activity which represents more than

5  per cent. of the total spending by the business.

(3)
The Secretary of State shall make regulations to require disclosure of information

and results from all market research and scientific research conducted by the

businesses specified in subsection (1) in relation to tobacco products by type of

product.

(4)
The Secretary of State shall require all information required by subsections (1)

and (3) to be submitted on a quarterly basis by businesses specified in subsection

(1) and shall, within three months, publish a report aggregating the data.

(5)
A person who does not comply with regulations under this section shall be guilty

of an offence.

(6)
The provisions of section 13 (Enforcement), 14 (Powers of entry, etc), 15

(Obstruction, etc of officers) and 16 (Penalties) of the Tobacco Advertising and

Promotion Act 2002 shall apply to this section.’.