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Health and Social Care Bill


Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing

87

 

(b)   

the applicant or (as the case may be) licence holder concerned has

refused consent to the inclusion of the condition or the making of the

modifications.

(2)   

Monitor may make a reference to the Competition Commission which is so

framed as to require the Commission to investigate and report on the

5

questions—

(a)   

whether any matters which relate to the provision, or proposed

provision, of a health care service for the purposes of the NHS by the

applicant or (as the case may be) licence holder concerned and which

are specified in the reference, operate, or may be expected to operate,

10

against the public interest, and

(b)   

if so, whether the effects adverse to the public interest which those

matters have or may be expected to have could be remedied or

prevented by the inclusion of a special condition in the applicant’s

licence or by modifications of a special condition of the licence holder’s

15

licence.

(3)   

Subsection (4) applies where—

(a)   

Monitor has given notice under section 91(2) of a proposal to make

modifications to the standard conditions applicable to all licences

under this Chapter, or to licences of a particular description, and

20

(b)   

section 91 operates to prevent Monitor from making the modifications.

(4)   

Monitor may make a reference to the Competition Commission which is so

framed as to require the Commission to investigate and report on the

questions—

(a)   

whether any matters which relate to the provision of health care

25

services for the purposes of the NHS by the relevant licence holders,

and which are specified in the reference, operate, or may be expected to

operate, against the public interest, and

(b)   

if so, whether the effects adverse to the public interest which those

matters have or may be expected to have could be remedied or

30

prevented by modifications of the standard conditions applicable to all

licences under this Chapter, or to licences of a particular description.

(5)   

Schedule 8 (which makes further provision about references to the

Competition Commission) has effect in relation to a reference under subsection

(2) or (4); and, for that purpose, the relevant persons are—

35

(a)   

in paragraphs 3, 6(6) and 7(6)—

(i)   

the applicant or (as the case may be) relevant licence holders,

(ii)   

the National Health Service Commissioning Board, and

(iii)   

such commissioning consortia as are likely to be affected by

matters to which the reference relates,

40

(b)   

in paragraph 5(6), the applicant or (as the case may be) relevant licence

holders, and

(c)   

in paragraph 8(10)—

(i)   

the applicant or (as the case may be) relevant licence holders,

(ii)   

Monitor,

45

(iii)   

the National Health Service Commissioning Board, and

(iv)   

such commissioning consortia as are likely to be affected by the

proposal concerned.

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing

88

 

(6)   

In investigating the question under subsection (2)(a) or (4)(a) the Competition

Commission must have regard to—

(a)   

the matters in respect of which Monitor has duties under section 52,

and

(b)   

the matters to which Monitor must have regard by virtue of section 54.

5

(7)   

The modification pursuant to a reference made under subsection (2) of part of

a standard condition of a licence does not prevent any other part of the

condition from continuing to be regarded as a standard condition for the

purposes of this Chapter.

(8)   

In this section, a reference to modifying a condition includes a reference to

10

amending, omitting or adding a condition.

93      

Modification of conditions by order under other enactments

(1)   

This section applies where the Office of Fair Trading, Competition

Commission or Secretary of State (the “relevant authority”) makes a relevant

order.

15

(2)   

The relevant order may modify—

(a)   

the conditions of a particular licence, or

(b)   

the standard conditions applicable to all licences under this Chapter or

to licences of a particular description.

(3)   

The modifications which may be made by a relevant order are those which the

20

relevant authority considers necessary or expedient for the purpose of giving

effect to, or taking account of, any provision made by the order.

(4)   

In this section “relevant order” means—

(a)   

an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of

Schedule 7 to, the Enterprise Act 2002 where one or more of the

25

enterprises which have, or may have, ceased to be distinct enterprises

were engaged in the provision of health care services for the purposes

of the NHS;

(b)   

an order under any of those provisions of that Act where one or more

of the enterprises which will or may cease to be distinct enterprises is

30

engaged in the provision of health care services for the purposes of the

NHS;

(c)   

an order under section 160 or 161 of that Act where the feature, or

combination of features, of the market in the United Kingdom for

goods or services which prevents, restricts or distorts competition

35

relates to—

(i)   

the commissioning by the National Health Service

Commissioning Board or a commissioning consortium of health

care services for the purposes of the NHS, or

(ii)   

the provision of those services.

40

(5)   

The modification under subsection (2)(a) of part of a standard condition of a

licence does not prevent any other part of the condition from continuing to be

regarded as a standard condition for the purposes of this Chapter.

(6)   

Where the relevant authority modifies the standard conditions applicable to all

licences or (as the case may be) to licences of a particular description under this

45

section, the relevant authority—

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing

89

 

(a)   

may, after consultation with Monitor, make such incidental or

consequential modifications as the relevant authority considers

necessary or expedient of any other conditions of any licence which is

affected by the modifications,

(b)   

must also make (as nearly as may be) the same modifications of those

5

conditions for the purposes of their inclusion in licences granted after

that time, and

(c)   

must publish any modifications it makes under paragraph (b).

(7)   

Expressions used in subsection (4) and in Part 3 or (as the case may be) Part 4

of the Enterprise Act 2002 have the same meaning in that subsection as in that

10

Part.

(8)   

A reference in this section to modifying a condition includes a reference to

amending, omitting or adding a condition.

Enforcement

94      

Power to require documents and information

15

(1)   

Monitor may require a person mentioned in subsection (2) to provide it with

any information, documents, records or other items which it considers it

necessary or expedient to have for the purposes of any of its regulatory

functions.

(2)   

The persons are—

20

(a)   

an applicant for a licence under this Chapter,

(b)   

a licence holder,

(c)   

a person who has provided, or is providing, a health care service for the

purposes of the NHS in accordance with an exemption by virtue of

section 76 from the requirement to hold a licence under this Chapter,

25

(d)   

a person who has provided, or is providing, a health care service for the

purposes of the NHS in breach of that requirement,

(e)   

the National Health Service Commissioning Board, and

(f)   

a commissioning consortium.

(3)   

The power in subsection (1) includes, in relation to information, documents or

30

records kept by means of a computer, power to require the provision of the

information, documents or records in legible form.

(4)   

For the purposes of subsection (1) Monitor’s regulatory functions are its

functions under—

(a)   

this Chapter,

35

(b)   

Chapter 3 and Chapters 5 to 7, and

(c)   

Chapter 5 of Part 2 of the National Health Service Act 2006 (NHS

foundation trusts).

95      

Discretionary requirements

(1)   

Monitor may impose one or more discretionary requirements on a person if

40

Monitor is satisfied that the person—

(a)   

has provided, or is providing, a health care service for the purposes of

the NHS in breach of the requirement to hold a licence under this

Chapter (see section 74),

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing

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(b)   

is a licence holder who has provided, or is providing, a health care

service for the purposes of the NHS in breach of a condition of the

licence, or

(c)   

is in breach of a requirement imposed by Monitor under section 94.

(2)   

In this Chapter, “discretionary requirement” means—

5

(a)   

a requirement to pay a monetary penalty to Monitor of such amount as

Monitor may determine (referred to in this Chapter as a “variable

monetary penalty”),

(b)   

a requirement to take such steps within such period as Monitor may

specify, to secure that the breach in question does not continue or recur

10

(referred to in this Chapter as a “compliance requirement”), or

(c)   

a requirement to take such steps within such period as Monitor may

specify, to secure that the position is, so far as possible, restored to what

it would have been if the breach in question was not occurring or had

not occurred (referred to in this Chapter as a “restoration

15

requirement”).

(3)   

Monitor must not impose discretionary requirements on a person on more

than one occasion in relation to the same breach.

(4)   

A variable monetary penalty must not exceed 10% of the turnover in England

of the person on whom it is imposed, such amount to be calculated in the

20

prescribed manner.

(5)   

If the whole or any part of a variable monetary penalty is not paid by the time

it is required to be paid, the unpaid balance from time to time carries interest

at the rate for the time being specified in section 17 of the Judgments Act 1838;

but the total interest must not exceed the amount of the penalty.

25

96      

Enforcement undertakings

(1)   

Monitor may accept an enforcement undertaking from a person if Monitor has

reasonable grounds to suspect that the person—

(a)   

has provided, or is providing, a health care service for the purposes of

the NHS in breach of the requirement to hold a licence under this Part,

30

(b)   

is a licence holder who has provided, or is providing, a health care

service for the purposes of the NHS in breach of a condition of the

licence, or

(c)   

is in breach of a requirement imposed by Monitor under section 94.

(2)   

In this Chapter, “enforcement undertaking” means an undertaking from a

35

person to take such action of a kind mentioned in subsection (3) as may be

specified in the undertaking within such period as may be so specified.

(3)   

The specified action must be—

(a)   

action to secure that the breach in question does not continue or recur,

(b)   

action to secure that the position is, so far as possible, restored to what

40

it would have been if the breach in question was not occurring or had

not occurred,

(c)   

action (including the payment of a sum of money) to benefit—

(i)   

any other licence holder affected by the breach, or

(ii)   

any commissioner of health care services for the purposes of the

45

NHS which is affected by the breach, or

(d)   

action of such a description as may be prescribed.

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing

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(4)   

Where Monitor accepts an enforcement undertaking then, unless the person

from whom the undertaking is accepted has failed to comply with the

undertaking or any part of it—

(a)   

Monitor may not impose on that person any discretionary requirement

which it would otherwise have power to impose by virtue of section 95

5

in respect of the breach to which the undertaking relates, and

(b)   

if the breach to which the undertaking relates falls within subsection

(1)(b), Monitor may not revoke that person’s licence under section

82(b).

(5)   

Where a person from whom Monitor has accepted an enforcement

10

undertaking has failed to comply fully with the undertaking but has complied

with part of it, Monitor must take the partial compliance into account in

deciding whether—

(a)   

to impose a discretionary requirement on the person in respect of the

breach to which the undertaking relates, or

15

(b)   

if the breach to which the undertaking relates falls within subsection

(1)(b), to revoke the person’s licence under section 82(b).

97      

Further provision about enforcement powers

Schedule 9 (Part 1 of which makes further provision about discretionary

requirements and Part 2 of which makes further provision about enforcement

20

undertakings) has effect.

98      

Guidance as to use of enforcement powers

(1)   

Monitor must publish guidance about how it intends to exercise its functions

under sections 95 and 96 and Schedule 9.

(2)   

Monitor may revise the guidance and, if it does so, must publish the guidance

25

as revised.

(3)   

Monitor must consult such persons as it considers appropriate before

publishing or revising the guidance.

(4)   

Guidance relating to Monitor’s functions under section 95 must include

information about—

30

(a)   

the circumstances in which Monitor is likely to impose a discretionary

requirement,

(b)   

the circumstances in which Monitor may not impose a discretionary

requirement,

(c)   

the matters likely to be taken into account by Monitor in determining

35

the amount of any variable monetary penalty to be imposed (including,

where relevant, any discounts for voluntary reporting of breaches in

respect of which a penalty may be imposed), and

(d)   

rights to make representations and rights of appeal.

(5)   

Monitor must have regard to the guidance or (as the case may be) revised

40

guidance in exercising its functions under sections 95 and 96 and Schedule 9.

99      

Publication of enforcement action

(1)   

Monitor must include information about the following in its annual report—

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing

92

 

(a)   

the cases in which a discretionary requirement has been imposed

during the financial year to which the report relates, and

(b)   

the cases in which an enforcement undertaking has been accepted

during that financial year.

(2)   

But Monitor must not include commercial information which it is satisfied

5

would or might significantly harm the legitimate business interests of the

licence holder to whom it relates.

(3)   

The reference in subsection (1)(a) to cases in which a discretionary requirement

has been imposed does not include a reference to a case where a discretionary

requirement has been imposed but overturned on appeal.

10

100     

Notification of enforcement action

(1)   

As soon as reasonably practicable after imposing a discretionary requirement

or accepting an enforcement undertaking Monitor must notify the following of

that fact—

(a)   

the National Health Service Commissioning Board,

15

(b)   

such commissioning consortia as are likely to be affected by the

imposition of the requirement or the acceptance of the undertaking,

and

(c)   

any person exercising regulatory functions in relation to the person on

whom the discretionary requirement was imposed or from whom the

20

enforcement undertaking was accepted.

(2)   

In subsection (1) “regulatory functions” has the same meaning as in the

Legislative and Regulatory Reform Act 2006 (see section 32 of that Act).

Transitional provision

101     

Designation of NHS foundation trusts during transitional period

25

(1)   

Monitor may designate an NHS foundation trust for the purposes of this

section and section 102 if it is satisfied that the trust meets such criteria as are

set and published by Monitor.

(2)   

Before publishing criteria under subsection (1), Monitor must consult—

(a)   

the Secretary of State,

30

(b)   

the Care Quality Commission, and

(c)   

such other persons as Monitor considers are likely to be affected by a

designation under this section.

(3)   

A designation under this section of a trust authorised before the day on which

this Chapter comes into force (“the licensing commencement day”) does not

35

have effect unless—

(a)   

Monitor gives notice of the designation to the Secretary of State, and

(b)   

before the end of the period of 28 days beginning with the day after that

on which the Secretary of State receives the notice, the Secretary of State

approves the designation.

40

(4)   

A trust authorised before the licensing commencement day may not be

designated under this section after that day; but approval under subsection

(3)(b) may be given after that day.

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing

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(5)   

A designation under this section of a trust authorised before the licensing

commencement day expires at the end of the period of two years beginning

with that day.

(6)   

A designation under this section of a trust authorised on or after the licensing

commencement day takes effect when the designation is given.

5

(7)   

A trust authorised on or after the licensing commencement day may not be

designated under this section other than at the time when the trust is

authorised.

(8)   

A designation under this section of a trust authorised on or after the licensing

commencement day expires at the end of the period of two years beginning

10

with the day on which the designation is given.

(9)   

Where Monitor is satisfied that a trust in respect of which a designation under

this section has effect does not meet the criteria for the time being published

under subsection (1), it may remove the designation from the trust.

(10)   

The Secretary of State may by order provide that subsections (5) and (8) are to

15

have effect with the substitution of a longer period for the period specified

there (whether originally or by virtue of a previous order).

(11)   

In this section, a reference to being authorised is a reference to being given an

authorisation under section 35 of the National Health Service Act 2006.

102     

Imposition of licence conditions on designated NHS foundation trusts

20

(1)   

This section applies in relation to an NHS foundation trust in respect of which

a designation under section 101 has effect.

(2)   

Where Monitor is satisfied that there is a significant risk that the trust will fail

to fulfil its principal purpose (as to which, see section 43(1) of the National

Health Service Act 2006), Monitor may include in the trust’s licence such

25

conditions as it considers appropriate for the purpose of reducing that risk.

(3)   

A condition included under subsection (2) has effect until the designation

expires.

(4)   

Monitor may modify a condition included under subsection (2).

(5)   

Where Monitor is satisfied that the trust has breached or is breaching a

30

condition included under subsection (2), Monitor may by notice—

(a)   

require the trust, the directors or the council of governors to do, or not

to do, specified things or things of a specified description within a

specified period;

(b)   

remove one or more of the directors or members of the council of

35

governors and appoint interim directors or members of the council;

(c)   

suspend one or more of the directors or members of the council from

office as a director or member for a specified period;

(d)   

disqualify one or more of the directors or members of the council from

holding office as a director or member for a specified period.

40

(6)   

Where Monitor is satisfied that the trust has breached or is breaching a

requirement imposed under subsection (5), or has otherwise failed or is

otherwise failing to comply with a notice under that subsection, Monitor may

by notice exercise one or more of the powers specified in paragraphs (a) to (d)

of that subsection.

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