Health and Social Care Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
67

(8)
Monitor may not implement the proposal unless the consultation period has
ended.
(9)
Where Monitor is required (apart from this section) to consult about, or afford
a person an opportunity to make representations about, a proposal that comes
within subsection (1), the requirements of this section—
5
(a)
are in addition to the other requirement, but
(b)
may be met contemporaneously with it.
(10)
Every annual report of Monitor must set out—
(a)
a list of the assessments carried out under this section during the
financial year to which the report relates, and
10
(b)
a summary of the decisions taken during that year in relation to
proposals to which assessments carried out during that year or a
previous financial year relate.
58
Information
(1)
Information obtained by, or documents, records or other items produced to,
15
Monitor in connection with any of its functions may be used by Monitor in
connection with any of its other functions.
(2)
For the purposes of exercising a function under this Part, the Secretary of State
may request Monitor to provide the Secretary of State with such information
as the Secretary of State may specify.
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(3)
Monitor must comply with a request under subsection (2).
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Failure to perform functions
(1)
This section applies if the Secretary of State considers that Monitor is failing, or
has failed, to perform a function.
(2)
The Secretary of State may direct Monitor to perform such of those functions,
25
and in such manner and within such period, as the direction specifies.
(3)
If Monitor fails to comply with a direction under this section, the Secretary of
State may—
(a)
perform the functions to which the direction relates, or
(b)
make arrangements for some other person to perform them on the
30
Secretary of State’s behalf.
(4)
Reference in subsection (1) to failure to perform a function includes a reference
to failure to perform it properly.
Chapter 2
Competition
35
60
Functions under the Competition Act 1998
(1)
The functions referred to in subsection (2) are concurrent functions of Monitor
and the Office of Fair Trading.
(2)
The functions are those that the Office of Fair Trading has under Part 1 of the
Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51) so
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
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far as relating to any of the following which concern the provision of health
care services in England—
(a)
agreements, decisions or concerted practices of the kind mentioned in
section 2(1) of that Act,
(b)
conduct of the kind mentioned in section 18(1) of that Act,
5
(c)
agreements, decisions or concerted practices of the kind mentioned in
Article 101 of the Treaty on the Functioning of the European Union,
(d)
conduct which amounts to abuse of the kind mentioned in Article 102
of that Treaty.
(3)
So far as necessary for the purposes of subsections (1) and (2), references to the
10
Office of Fair Trading in Part 1 of the Competition Act 1998 are to be read as
including references to Monitor (except in sections 31D(1) to (6), 38(1) to (6), 51,
52(6) and (8) and 54).
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Functions under Part 4 of the Enterprise Act 2002
(1)
The functions referred to in subsection (2) are concurrent functions of Monitor
15
and the Office of Fair Trading.
(2)
The functions are those that the Office of Fair Trading has under Part 4 of the
Enterprise Act 2002 (market investigations), other than sections 166 and 171, so
far as relating to activities which concern the provision of health care services
in England.
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(3)
So far as necessary for the purposes of subsections (1) and (2), references in Part
4 of the Enterprise Act 2002 to the Office of Fair Trading (including references
in provisions of that Act applied by that Part) must be construed as including
references to Monitor, except in sections 166 and 171.
(4)
Before the Office of Fair Trading or Monitor first exercises functions which are
25
exercisable concurrently by virtue of this section, it must consult the other.
(5)
Neither the Office of Fair Trading nor Monitor may exercise in relation to any
matter functions which are exercisable concurrently by virtue of this section if
functions which are so exercisable have been exercised in relation to that
matter by the other.
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(6)
Section 117 of the Enterprise Act 2002 (offences of supplying false or
misleading information) as applied by section 180 of that Act is to have effect
so far as relating to functions exercisable by Monitor by virtue of this section as
if the references in section 117(1)(a) and (2) to the Office of Fair Trading
included references to Monitor.
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62
Competition functions: supplementary
(1)
No objection may be taken to anything done by or in relation to Monitor under
the Competition Act 1998 or Part 4 of the Enterprise Act 2002 on the ground
that it should have been done by or in relation to the Office of Fair Trading.
(2)
Subject to subsection (3), sections 52 (general duties of Monitor) and 54
40
(matters to which Monitor must have regard) do not apply in relation to
anything done by Monitor in the carrying out of its functions by virtue of
section 60 or section 61.
(3)
In the carrying out of any functions by virtue of section 60 or 61, Monitor may
nevertheless have regard to any of the matters in respect of which a duty is
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
69

imposed by section 52 or 54 if it is a matter to which the Office of Fair Trading
is entitled to have regard in the carrying out of those functions.
(4)
In section 9E of the Company Directors Disqualification Act 1986 (specified
regulators in cases of disqualification for competition infringements), in
subsection (2) after paragraph (e) insert “;
5
(f)
Monitor.”
(5)
In section 54 of the Competition Act 1998, in subsection (1) (definition of
“regulator” for the purposes of Part 1 of that Act)—
(a)
omit the “and” preceding paragraph (g), and
(b)
after that paragraph insert “; and
10
(h)
Monitor.”
(6)
In section 136 of the Enterprise Act 2002 (investigations and reports on market
investigation references)—
(a)
in subsection (7) (meaning of “relevant sectoral enactment”), at the end
insert—
15
“(i)
in relation to Monitor, sections 60 and 61 of the Health
and Social Care Act 2011.”,
(b)
in subsection (8) (meaning of “relevant sectoral regulator”), for
“Communications or” substitute “Communications,”, and
(c)
in that subsection, after “Utility Regulation” insert “or Monitor”.
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(7)
In section 168 of that Act (regulated markets)—
(a)
in subsection (3) (meaning of “relevant action”), after paragraph (n)
insert—
“(o)
modifying the conditions of a licence issued under
section 80 of the Health and Social Care Act 2011.”,
25
(b)
in subsection (4) (meaning of “relevant statutory functions”), after
paragraph (p) insert—
“(q)
in relation to any licence issued under section 80 of the
Health and Social Care Act 2011, the duties of Monitor
under sections 52 and 54 of that Act.”, and
30
(c)
in subsection (5) (meaning of “sectoral regulator”), after paragraph (i)
insert—
“(ia)
Monitor;”.
63
Requirements as to good procurement practice, etc.
(1)
Regulations may impose requirements on the National Health Service
35
Commissioning Board and commissioning consortia for the purpose of
securing that, in commissioning health care services for the purposes of the
NHS, they—
(a)
adhere to good practice in relation to procurement,
(b)
protect and promote the right of patients to make choices with respect
40
to treatment or other health care services provided for the purposes of
the NHS,
(c)
promote competition in the provision of health care services for those
purposes.
(2)
Subsection (1) applies to an arrangement for the provision of goods and
45
services only if the value of the consideration attributable to the services is
greater than that attributable to the goods.

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Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
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(3)
Regulations under this section may, in particular, impose requirements
relating to—
(a)
competitive tendering for the provision of services;
(b)
the management of conflicts between the interests involved in
commissioning services and the interests involved in providing them.
5
(4)
The regulations may provide for the requirements imposed, or such of them as
are prescribed, not to apply in relation to arrangements of a prescribed
description.
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Powers in relation to requirements imposed under section 63
(1)
Regulations under section 63 may confer on Monitor—
10
(a)
a power to investigate a complaint that the National Health Service
Commissioning Board or a commissioning consortium has failed to
comply with a requirement imposed by the regulations;
(b)
a power to require the Board or a commissioning consortium to provide
it with such information as Monitor may specify for the purposes of an
15
investigation it carries out by virtue of paragraph (a);
(c)
a power to require the Board or a commissioning consortium to provide
an explanation of such information as it provides by virtue of
paragraph (b).
(2)
A power conferred by virtue of subsection (1)(a) is exercisable only where
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Monitor considers that the person making the complaint has sufficient interest
in the arrangement to which the complaint relates.
(3)
Regulations under section 63 may confer on Monitor—
(a)
a power to declare that an arrangement for the provision of health care
services for the purposes of the NHS is ineffective, and
25
(b)
a power, having made a declaration by virtue of paragraph (a), to direct
the National Health Service Commissioning Board or commissioning
consortium to put the provision of the services out to tender.
(4)
The powers conferred by virtue of subsection (3) are exercisable only in
prescribed circumstances and subject to prescribed restrictions and only where
30
Monitor is satisfied that—
(a)
the National Health Service Commissioning Board or a commissioning
consortium has failed to comply with a requirement of regulations
under section 63, and
(b)
the failure is sufficiently serious.
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(5)
On a declaration being made by virtue of subsection (3)(a), the arrangement is
void; but that does not affect—
(a)
the validity of anything done pursuant to the arrangement,
(b)
any right acquired or liability incurred under the arrangement, or
(c)
any proceedings or remedy in respect of such a right or liability.
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(6)
Regulations under section 63 may confer on Monitor a power to direct the
National Health Service Commissioning Board or a commissioning
consortium—
(a)
to put in place measures for the purpose of preventing failures to
comply with requirements imposed by the regulations or mitigating
45
the effect of such failures;
(b)
to remedy a failure to comply with such a requirement;

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Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
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(c)
not to exercise in a prescribed manner prescribed functions in relation
to arrangements for the provision of health care services;
(d)
to vary or withdraw an invitation to tender for the provision of health
care services;
(e)
to vary an arrangement for the provision of health care services made
5
in consequence of putting the provision of the services out to tender.
(7)
A failure to comply with a requirement imposed by regulations under section
63 which causes loss or damage is actionable, except in so far as the regulations
restrict the right to bring such an action.
(8)
Regulations under section 63 may—
10
(a)
provide for a specified defence to such an action;
(b)
prevent a person who has brought such an action under the Public
Contracts Regulations 2006 (S.I. 2006/5) from bringing such an action
under the regulations under section 63 in respect of the whole or part
of the same loss or damage.
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65
Mergers involving NHS foundation trusts
(1)
Part 3 of the Enterprise Act 2002 (mergers) applies (in so far as it would not
otherwise) to each of the following cases as it applies to a case where two or
more enterprises have ceased to be distinct enterprises.
(2)
The first case is where the activities of two or more NHS foundation trusts have
20
ceased to be distinct activities.
(3)
The second case is where the activities of one or more NHS foundation trusts
and the activities of one or more businesses have ceased to be distinct activities.
(4)
In subsections (2) and (3), a reference to the activities of an NHS foundation
trust or a business includes a reference to part of its activities.
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(5)
In this section, “enterprise” and “business” each have the same meaning as in
Part 3 of the Enterprise Act 2002.
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Reviews by the Competition Commission
(1)
The Competition Commission must review—
(a)
the development of competition in the provision of health care services
30
for the purposes of the NHS, and
(b)
the exercise by Monitor of its functions under this Part in relation to the
provision of health care services for those purposes.
(2)
Before beginning a review under this section, the Commission must publish a
notice specifying the matters it proposes to consider in the review.
35
(3)
In carrying out the review, the Commission must consider whether those
matters have or may be expected to have any effects adverse to the public
interest.
(4)
The Commission must complete the review, and publish a report of it, before
the end of the period of 12 months beginning with the day on which the notice
40
relating to the review was published under subsection (2).
(5)
The Commission must send a copy of the report to—
(a)
the Secretary of State,

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Chapter 2 — Competition
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(b)
Monitor, and
(c)
the National Health Service Commissioning Board.
(6)
Where the Commission concludes that one or more of the matters it considered
in the review has or may be expected to have effects adverse to the public
interest, it must include in the report its recommendations to the Secretary of
5
State, Monitor and the National Health Service Commissioning Board as to
how to remedy those effects.
(7)
Each of those persons must reply to the Commission to say what the person
proposes to do in the light of the recommendations; the reply must be made
before the end of the period of six months beginning with the day on which the
10
report was published.
(8)
Where the Commission is carrying out a review under this section, Monitor
must give the Commission—
(a)
such information in Monitor’s possession as the Commission may
require to enable it to carry out the review,
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(b)
such other information in Monitor’s possession as it considers would
assist the Commission in carrying out the review, and
(c)
such other assistance as the Commission may require to assist it in
carrying out the review.
(9)
The first review under this section must begin before the end of 2019.
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(10)
A subsequent review under this section must begin before the end of the
period of seven years beginning with the date on which the Commission
published the report of the previous review under this section.
(11)
For the purposes of the law of defamation, absolute privilege attaches to a
report under this section.
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(12)
In paragraph 19A of Schedule 7 to the Competition Act 1998 (duty of Chairman
to make rules of procedure), in the definition of “special reference group” in
sub-paragraph (9)—
(a)
after “an investigation” insert “or (in the case of the Health and Social
Care Act 2011) a review”,
30
(b)
omit the “or” preceding paragraph (p), and
(c)
after that paragraph insert “; or
(q)
section 66 of the Health and Social Care Act 2011.”
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Reviews under section 66: considerations relevant to publication
(1)
Before publishing a report under section 66, the Competition Commission
35
must have regard to the following considerations.
(2)
The first consideration is the need to exclude from publication (so far as
practicable) information the publication of which the Commission considers
would be contrary to the public interest.
(3)
The second consideration is the need to exclude from publication (so far as
40
practicable)—
(a)
commercial information the publication of which the Commission
considers might significantly harm the legitimate business interests of
a person to whom it relates, or

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Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
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(b)
information relating to the private affairs of an individual the
publication of which the Commission considers might significantly
harm the individual’s interests.
(4)
The third consideration is the extent to which publication of information
mentioned in subsection (3)(a) or (b) is necessary for the purposes of the report.
5
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Co-operation with the Office of Fair Trading
(1)
Monitor and the Office of Fair Trading must co-operate with each other in the
exercise of their respective functions under the Competition Act 1998 and the
Enterprise Act 2002.
(2)
In particular each must give the other—
10
(a)
such information in its possession as the other may require to enable it
to exercise those functions,
(b)
such other information in its possession as it considers would assist the
other in exercising those functions, and
(c)
such other assistance as the other may require to assist it in exercising
15
those functions.
Chapter 3
Designated services
69
Designation of services
(1)
The commissioner of a health care service for the purposes of the NHS may
20
apply to Monitor for the designation of the service for the purposes of this Part.
(2)
The commissioner may make the application only if—
(a)
it has consulted the relevant persons, and
(b)
it is satisfied the criterion in subsection (3) is met.
(3)
The criterion is that ceasing to provide the service concerned for the purposes
25
of the NHS would, in the absence of alternative arrangements for the provision
of the service for those purposes, be likely to—
(a)
have a significant adverse impact on the health of persons in need of the
service, or
(b)
cause a failure to prevent or ameliorate a significant adverse impact on
30
the health of such persons.
(4)
In determining whether that criterion is met, the commissioner must (in so far
as it would not otherwise be required to do so) have regard to—
(a)
the current and future need for the provision of the service for the
purposes of the NHS,
35
(b)
whether ceasing to provide the service for those purposes would
significantly reduce equality between those for whom the
commissioner arranges for the provision of services with respect to
their ability to access services provided for those purposes, and
(c)
such other matters as may be specified in guidance under section 73.
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(5)
An application under this section must be accompanied by copies of the
responses the commissioner received to the consultation under subsection
(2)(a).