Health and Social Care Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 11 — Miscellaneous
212

(8)
An order under subsection (5) must specify the period for which a prohibition
imposed by it has effect; and the period specified for that purpose may not
exceed one year beginning with the day on which the order comes into force.
(9)
But if the Secretary of State is satisfied that the breach is continuing to have a
detrimental effect (or an effect that overall is detrimental) on the performance
5
of the health service, the Secretary of State may by order extend by one year the
period for which the prohibition for the time being has effect.
(10)
In this section, “the health service” means the comprehensive health service
continued under section 1(1) of the National Health Service Act 2006.
The Care Quality Commission
10
268
Requirement for Secretary of State to approve remuneration policy etc
In paragraph 5 of Schedule 1 to the Health and Social Care Act 2008 (employees
of the Care Quality Commission), at the end insert—
    “(5)
Before making a determination as to remuneration, pensions,
allowances or gratuities for the purposes of sub-paragraph (3) or (4),
15
the Commission must obtain the approval of the Secretary of State to
its policy on that matter.”
Arrangements with devolved authorities etc.
269
Arrangements between the Board and Northern Ireland Ministers
(1)
The National Health Service Commissioning Board may make arrangements
20
with a Northern Ireland Minister for the Board to commission services for the
purposes of the Northern Ireland health service.
(2)
Arrangements under this section may be on such terms and conditions as may
be agreed between the parties to the arrangements.
(3)
Those terms and conditions may include provision with respect to the making
25
of payments to the National Health Service Commissioning Board in respect of
the cost to it of giving effect to the arrangements.
(4)
In this section—
“commission” means arrange for the provision of, and
“Northern Ireland Minister” includes the First Minister, the deputy First
30
Minister and a Northern Ireland department.
270
Arrangements between the Board and Scottish Ministers etc.
(1)
The National Health Service Commissioning Board may make arrangements
with the Scottish Ministers or a Scottish health body for the Board to
commission services for the purposes of the Scottish health service.
35
(2)
Arrangements under this section may be on such terms and conditions as may
be agreed between the parties to the arrangements.
(3)
Those terms and conditions may include provision with respect to the making
of payments to the National Health Service Commissioning Board in respect of
the cost to it of giving effect to the arrangements.
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Health and Social Care Bill
Part 11 — Miscellaneous
213

(4)
In this section—
“commission” means arrange for the provision of, and
“Scottish health body” means—
(a)
a Health Board or Special Health Board constituted under
section 2 of the National Health Service (Scotland) Act 1978, and
5
(b)
the Common Services Agency for the Scottish Health Service
constituted by section 10 of that Act.
271
Relationships between the health services
Schedule 20 (which amends enactments relating to the relationships between
the health services in the United Kingdom) has effect.
10
272
Advice or assistance to public authorities in the Isle of Man or Channel
Islands
(1)
The National Health Service Commissioning Board or a commissioning
consortium may provide advice or assistance to any public authority in the Isle
of Man or Channel Islands.
15
(2)
Advice or assistance under subsection (1) may be provided on such terms,
including terms as to payment, as the Board or (as the case may be) the
consortium considers appropriate.
Supervised community treatment
273
Certificate of consent of community patients to treatment
20
(1)
Part 4A of the Mental Health Act 1983 (treatment of community patients not
recalled to hospital) is amended as follows.
(2)
In section 64C (treatment of adult community patients), after subsection (4)
insert—
“(4A)
Where there is authority to give treatment by virtue of subsection (2)(a),
25
the certificate requirement is also met in respect of the treatment if the
approved clinician in charge of the treatment has certified in writing
that the patient has capacity to consent to the treatment and has
consented to it.
(4B)
But, if the patient has not attained the age of 18, subsection (4A) does
30
not apply to section 58A type treatment.”
(3)
In section 64E (treatment of child community patients), in subsection (7)—
(a)
for “(3) to (9)” substitute “(3) to (4A) and (5) to (9)”, and
(b)
at the end insert “; and for the purpose of this subsection, subsection
(4A) of section 64C above has effect as if—
35
(a)
the references to treatment were references only to
section 58 type treatment,
(b)
the reference to subsection (2)(a) of section 64C were a
reference to subsection (6)(a) of this section, and
(c)
the reference to capacity to consent were a reference to
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competence to consent.”

Health and Social Care Bill
Part 11 — Miscellaneous
214

(4)
After section 64F insert—
“64FA
Withdrawal of consent
(1)
Where the consent of a patient to any treatment has been given as
mentioned in section 64C(2)(a) above for the purposes of section 64B or
64E above, the patient may at any time before the completion of the
5
treatment withdraw his consent, and those sections shall then apply as
if the remainder of the treatment were a separate form of treatment.
(2)
Subsection (3) below applies where—
(a)
the consent of a patient to any treatment has been given as
mentioned in section 64C(2)(a) above for the purposes of section
10
64B or 64E above; but
(b)
before the completion of the treatment, the patient loses
capacity or (as the case may be) competence to consent to the
treatment.
(3)
The patient shall be treated as having withdrawn his consent and
15
section 64B or (as the case may be) section 64E above shall then apply
as if the remainder of the treatment were a separate form of treatment.
(4)
Without prejudice to the application of subsections (1) to (3) above to
any treatment given under the plan of treatment to which a patient has
consented, a patient who has consented to such a plan may at any time
20
withdraw his consent to further treatment, or to further treatment of
any description, under the plan.
(5)
This section shall not preclude the continuation of any treatment, or of
treatment under any plan, pending compliance with section 58, 58A,
64B or 64E above if the approved clinician in charge of the treatment
25
considers that the discontinuance of the treatment, or of treatment
under the plan, would cause serious suffering to the patient.”
(5)
In section 64H (certificates: supplementary provision)—
(a)
in subsection (2), at the end insert “; and the regulations may make
different provision for the different descriptions of Part 4A certificate”,
30
and
(b)
in subsections (3), (4) and (5), after “Part 4A certificate” insert “that falls
within section 64C(4) above”.
(6)
In section 17B of the Mental Health Act 1983 (conditions of community
treatment order), in subsection (3)(b), after “Part 4A of this Act” insert “that
35
falls within section 64C(4) below”.
(7)
In section 61 of that Act (review of treatment), in subsection (1), after “that
section)” insert “that falls within section 64C(4) below”.
(8)
In section 62A of that Act (treatment on recall of community patient or
revocation of order), in subsection (5), after “applies” insert “and the Part 4A
40
certificate falls within section 64C(4) below”.
(9)
In subsection (6) of that section, after “58 or 58A above” insert “or 64B or 64E
below”.
(10)
After that subsection insert—
“(6A)
In a case where this section applies and the certificate requirement is no
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longer met for the purposes of section 64C(4A) below, the continuation

Health and Social Care Bill
Part 11 — Miscellaneous
215

of any treatment, or of treatment under any plan, pending compliance
with section 58 or 58A above or 64B or 64E below shall not be precluded
if the approved clinician in charge of the treatment considers that the
discontinuance of the treatment, or of treatment under the plan, would
cause serious suffering to the patient.”
5
Transfer schemes
274
Transfer schemes
(1)
The Secretary of State may make a property transfer scheme or a staff transfer
scheme in connection with—
(a)
the establishment or abolition of a body by this Act, or
10
(b)
the modification of the functions of a body by or under this Act.
(2)
A property transfer scheme is a scheme for the transfer from a body mentioned
in the first column of the Table in Schedule 21 of any property, rights or
liabilities, other than rights or liabilities under or in connection with a contract
of employment, to a body mentioned in the corresponding entry in the second
15
column.
(3)
A staff transfer scheme is a scheme for the transfer from a body mentioned in
the first column of the Table in Schedule 22 of any rights or liabilities under or
in connection with a contract of employment to a body mentioned in the
corresponding entry in the second column.
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(4)
The Secretary of State may direct the Board or a qualifying company to exercise
the functions of the Secretary of State in relation to the making of a property
transfer scheme or a staff transfer scheme in connection with the abolition of—
(a)
one or more Primary Care Trusts specified in the direction, or
(b)
one or more Strategic Health Authorities so specified.
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(5)
Where the Secretary of State gives a direction under subsection (4), the
Secretary of State may give directions to the Board or (as the case may be) the
company about its exercise of the functions.
(6)
For the purposes of this section and section 275—
(a)
an individual who holds employment in the civil service is to be treated
30
as employed by virtue of a contract of employment, and
(b)
the terms of the individual’s employment in the civil service are to be
regarded as constituting the terms of the contract of employment.
(7)
In this section and section 275 references to the transfer of property include
references to the grant of a lease.
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(8)
In this section and Schedules 21 and 22, “qualifying company” means a
company which is formed under section 223 of the National Health Service Act
2006 and wholly or partly owned by the Secretary of State.
(9)
In section 275 and Schedules 21 and 22, “local authority” means—
(a)
a county council in England;
40
(b)
a district council in England, other than a council for a district in a
county for which there is a county council;
(c)
a London borough council;
(d)
the Council of the Isles of Scilly;

Health and Social Care Bill
Part 11 — Miscellaneous
216

(e)
the Common Council of the City of London.
275
Transfer schemes: supplemental
(1)
The things that may be transferred under a property transfer scheme or a staff
transfer scheme include—
(a)
property, rights and liabilities that could not otherwise be transferred;
5
(b)
property acquired, and rights and liabilities arising, after the making of
the scheme;
(c)
criminal liabilities but only where the transfer is to a person mentioned
in subsection (2).
(2)
Those persons are—
10
(a)
the National Health Service Commissioning Board;
(b)
a commissioning consortium;
(c)
a local authority;
(d)
the Care Quality Commission;
(e)
Monitor;
15
(f)
the National Institute for Health and Care Excellence;
(g)
the Health and Social Care Information Centre;
(h)
the Health and Care Professions Council;
(i)
a public authority other than a Minister of the Crown.
(3)
A property transfer scheme or a staff transfer scheme may make
20
supplementary, incidental, transitional and consequential provision and may
in particular—
(a)
create rights, or impose liabilities, in relation to property or rights
transferred;
(b)
make provision about the continuing effect of things done by the
25
transferor in respect of anything transferred;
(c)
make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in relation
to the transferor in respect of anything transferred;
(d)
make provision for references to the transferor in an instrument or
30
other document in respect of anything transferred to be treated as
references to the transferee.
(4)
A property transfer scheme may make provision for the shared ownership or
use of property.
(5)
A staff transfer scheme may make provision which is the same or similar to the
35
TUPE regulations.
(6)
A property transfer scheme or a staff transfer scheme may provide—
(a)
for the scheme to be modified by agreement after it comes into effect,
and
(b)
for any such modifications to have effect from the date when the
40
original scheme comes into effect.
(7)
Where a Primary Care Trust, a Strategic Health Authority or a Special Health
Authority is abolished by this Act, the Secretary of State must exercise the
powers conferred by section 274 and this section so as to secure that all the
body’s liabilities (other than criminal liabilities) are dealt with.
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Health and Social Care Bill
Part 12 — Final provisions
217

(8)
In this section, “TUPE regulations” means the Transfer of Undertakings
(Protection of Employment) Regulations 2006 (SI 2006/246).
Part 12
Final provisions
276
Power to make consequential provision
5
(1)
The Secretary of State may by order make provision in consequence of this Act.
(2)
An order under this section may, in particular—
(a)
amend or repeal a provision of an Act;
(b)
amend or revoke a provision of subordinate legislation;
(c)
include transitional, transitory or saving provision in connection with
10
the commencement of provision made by the order.
(3)
An order under this section that makes provision in consequence of Part 1, Part
4, Part 5 or Part 7 may (in addition to the things that may be done in reliance
on subsection (2)) amend a provision of, or a provision of an instrument made
under—
15
(a)
an Act of the Scottish Parliament,
(b)
an Act or Measure of the National Assembly for Wales, or
(c)
Northern Ireland legislation.
(4)
Transitory provision by virtue of subsection (2)(c) may, in particular, modify
the application of provision made by the order pending the commencement
20
of—
(a)
another provision of the order,
(b)
a provision of this Act,
(c)
a provision of another Act,
(d)
a provision of an Act or Measure of the National Assembly for Wales,
25
or
(e)
a provision of subordinate legislation.
(5)
The power conferred by this section is not restricted by any other provision of
this Act.
(6)
In this section, “subordinate legislation” has the same meaning as in the
30
Interpretation Act 1978.
277
Regulations, orders and directions
(1)
A power to make regulations under this Act is exercisable by the Secretary of
State.
(2)
Regulations under this Act, and orders by the Secretary of State or the Privy
35
Council under this Act, must be made by statutory instrument.
(3)
Subject to subsections (4) to (6), a statutory instrument containing regulations
under this Act, or an order by the Secretary of State or the Privy Council under
this Act, is subject to annulment in pursuance of a resolution of either House of
Parliament.
40
(4)
Subsection (3) does not apply to an order under section 279 (commencement).

Health and Social Care Bill
Part 12 — Final provisions
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(5)
A statutory instrument which contains (whether alone or with other provision)
any of the following may not be made unless a draft of the instrument has been
laid before, and approved by a resolution of, each House of Parliament—
(a)
regulations under section 53 (extension of Monitor’s functions to adult
social care services);
5
(b)
regulations under section 91(7)(b) or (c) (percentage to be prescribed in
cases of objections to proposals to modify standard licence conditions);
(c)
regulations under section 95(4) (manner in which turnover to be
calculated for purposes of penalty for breach of licence conditions etc.);
(d)
regulations under section 96(3)(d) (descriptions of action for specifying
10
in enforcement undertaking for breach of licence conditions etc.);
(e)
an order under section 101(10) (variation of period of designation for
failing NHS foundation trust);
(f)
regulations under section 106(2)(a), (b) or (c) (percentage to be
prescribed in cases of objections to proposals for national tariff);
15
(g)
regulations under section 116 (health special administration
regulations);
(h)
an order under section 126 (maximum amount that may be raised from
levy to raise funds for health special administration cases);
(i)
regulations under section 128(2)(b) (percentage to be prescribed in
20
cases of objections to proposals to impose levy);
(j)
an order under section 164(4) (variation of date on which NHS trusts
abolished);
(k)
an order under section 266(4) (addition to list of bodies subject to duty
co-operate);
25
(l)
an order under section 267(5) (order prohibiting bodies subject to duty
to co-operate from exercising specified functions etc.);
(m)
an order under section 276 which makes provision by virtue of
subsection (2)(a) of that section (consequential amendments of Acts);
(n)
regulations which, by virtue of subsection (8)(a), include provision that
30
amends or repeals a provision of an Act of Parliament.
(6)
A statutory instrument containing an order by the Privy Council under this Act
that includes provision which would, if it were included in an Act of the
Scottish Parliament, be within the legislative competence of that Parliament is
subject to annulment in pursuance of a resolution of—
35
(a)
either House of Parliament, or
(b)
the Scottish Parliament.
(7)
A power to make regulations under this Act, a power of the Secretary of State
or the Privy Council to make an order under this Act, and a power to give
directions under or by virtue of this Act—
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(a)
may be exercised either in relation to all cases to which the power
extends, or in relation to those cases subject to specified exceptions, or
in relation to any specified cases or descriptions of case,
(b)
may be exercised so as to make, as respects the cases in relation to
which it is exercised—
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(i)
the full provision to which the power extends or any less
provision (whether by way of exception or otherwise),
(ii)
the same provision for all cases in relation to which the power
is exercised, or different provision for different cases or
different descriptions of case, or different provision as respects
50