Health and Social Care Bill

Session 2010 - 11
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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
104

(a)
in relation to proposed modifications of the standard conditions
applicable to all licences, means any licence holder, and
(b)
in relation to proposed modifications of the standard conditions
applicable to licences of a particular description, means a holder of a
licence of that description.
5
(12)
In this section, a reference to modifying a condition includes a reference to
amending, omitting or adding a condition.
103
Modification references to the Competition Commission
(1)
Subsection (2) applies where—
(a)
Monitor has given notice under section 99(2) of a proposal to include a
10
special condition in a licence or modify such a condition, and
(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
15
framed as to require the Commission to investigate and report on the
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
20
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
prevented by the inclusion of a special condition in the applicant’s
25
licence or by modifications of a special condition of the licence holder’s
licence.
(3)
Subsection (4) applies where—
(a)
Monitor has given notice under section 102(2) of a proposal to make
modifications to the standard conditions applicable to all licences
30
under this Chapter, or to licences of a particular description, and
(b)
section 102 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
35
questions—
(a)
whether any matters which relate to the provision of health care
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
40
(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 modifications of the standard conditions applicable to all
licences under this Chapter, or to licences of a particular description.
(5)
Schedule 10 (which makes further provision about references to the
45
Competition Commission) has effect in relation to a reference under subsection
(2) or (4); and, for that purpose, the relevant persons are—
(a)
in paragraphs 3, 6(6) and 7(6)—

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
105

(i)
the applicant or licence holder concerned 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,
5
(b)
in paragraph 5(6), the applicant or licence holder concerned or (as the
case may be) relevant licence holders, and
(c)
in paragraph 8(10)—
(i)
the applicant or licence holder concerned or (as the case may be)
relevant licence holders,
10
(ii)
Monitor,
(iii)
the National Health Service Commissioning Board, and
(iv)
such commissioning consortia as are likely to be affected by the
proposal concerned.
(6)
In investigating the question under subsection (2)(a) or (4)(a) the Competition
15
Commission must have regard to—
(a)
the matters in respect of which Monitor has duties under section 56,
and
(b)
the matters to which Monitor must have regard by virtue of section 58.
(7)
Where the standard conditions applicable to all licences or (as the case may be)
20
to licences of a particular description are modified pursuant to a reference
made under subsection (4), Monitor—
(a)
may also make such incidental or consequential modifications as it
considers necessary or expedient of any other conditions of a licence
which is affected by the modifications,
25
(b)
must make (as nearly as may be) the same modifications of those
conditions for the purposes of their inclusion in all licences or (as the
case may be) licences of that description granted after that time, and
(c)
must publish any modifications made under this subsection.
(8)
In this section, a reference to modifying a condition includes a reference to
30
amending, omitting or adding a condition.
104
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.
35
(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
40
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
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enterprises which have, or may have, ceased to be distinct enterprises

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
106

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
engaged in the provision of health care services for the purposes of the
5
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
relates to—
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(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.
(5)
The modification under subsection (2)(a) of part of a standard condition of a
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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
section, the relevant authority—
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(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
25
conditions for the purposes of their inclusion in all licences or (as the
case may be) licences of that description 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
30
Part.
(8)
A reference in this section to modifying a condition includes a reference to
amending, omitting or adding a condition.
Enforcement
105
Power to require documents and information
35
(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—
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(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 87 from the requirement to hold a licence under this Chapter,
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
107

(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
5
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,
10
(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).
106
Discretionary requirements
(1)
Monitor may impose one or more discretionary requirements on a person if
15
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 85),
(b)
is a licence holder who has provided, or is providing, a health care
20
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 105.
(2)
In this Chapter, “discretionary requirement” means—
(a)
a requirement to pay a monetary penalty to Monitor of such amount as
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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
(referred to in this Chapter as a “compliance requirement”), or
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(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
requirement”).
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(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
prescribed manner.
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(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.