Session 2010 - 11
Internet Publications
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 4 — Licensing

108

 

107     

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

5

Chapter,

(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 105.

10

(2)   

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

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,

15

(b)   

action 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,

(c)   

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

(i)   

any other licence holder affected by the breach, or

20

(ii)   

any commissioner of health care services for the purposes of the

NHS which is affected by the breach, or

(d)   

action of such a description as may be prescribed.

(4)   

Where Monitor accepts an enforcement undertaking then, unless the person

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

25

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

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

(b)   

if the breach to which the undertaking relates falls within subsection

30

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

93(b).

(5)   

Where a person from whom Monitor has accepted an enforcement

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

35

deciding whether—

(a)   

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

breach to which the undertaking relates, or

(b)   

if the breach to which the undertaking relates falls within subsection

(1)(b), to revoke the person’s licence under section 93(b).

40

108     

Further provision about enforcement powers

Schedule 11 (Part 1 of which makes further provision about discretionary

requirements and Part 2 of which makes further provision about enforcement

undertakings) has effect.

 
 

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

109

 

109     

Guidance as to use of enforcement powers

(1)   

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

under sections 106 and 107 and Schedule 11.

(2)   

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

as revised.

5

(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 106 must include

information about—

(a)   

the circumstances in which Monitor is likely to impose a discretionary

10

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

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

15

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

guidance in exercising its functions under sections 106 and 107 and Schedule

20

11.

110     

Publication of enforcement action

(1)   

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

(a)   

the cases in which a discretionary requirement has been imposed

during the financial year to which the report relates, and

25

(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

would or might significantly harm the legitimate business interests of the

person to whom it relates.

30

(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.

111     

Notification of enforcement action

(1)   

As soon as reasonably practicable after imposing a discretionary requirement

35

or accepting an enforcement undertaking Monitor must notify the following of

that fact—

(a)   

the National Health Service Commissioning Board,

(b)   

such commissioning consortia as are likely to be affected by the

imposition of the requirement or the acceptance of the undertaking,

40

and

(c)   

any person exercising regulatory functions in relation to the person on

whom the discretionary requirement was imposed or from whom the

enforcement undertaking was accepted.

 
 

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

110

 

(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

112     

Designation of NHS foundation trusts during transitional period

(1)   

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

5

section and section 113 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,

(b)   

the Care Quality Commission, and

10

(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

have effect unless—

15

(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.

(4)   

A trust authorised before the licensing commencement day may not be

20

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

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

(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.

25

(6)   

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

commencement day takes effect when the designation is given.

(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.

30

(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

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 under subsection (1), it may

35

remove the designation from the trust.

(10)   

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

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

40

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

 
 

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

111

 

113     

Imposition of licence conditions on designated NHS foundation trusts

(1)   

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

a designation under section 112 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

5

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

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).

10

(5)   

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

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 (or to do, or

not to do, any such things in a specified manner) within such period as

15

may be specified;

(b)   

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

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;

20

(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.

(6)   

Where Monitor is satisfied that a person has breached or is breaching a

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

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

25

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

of subsection (5).

(7)   

A power under subsection (5) (including as it applies by virtue of subsection

(6)) may be exercised only while the designation has effect.

(8)   

Subsection (5) does not prevent Monitor from exercising the powers conferred

30

by sections 106 and 107 (discretionary requirements and enforcement

undertakings) in relation to conditions included under subsection (2).

(9)   

Where Monitor includes a condition under subsection (2), it may also make

such incidental or consequential modifications as it considers necessary or

expedient of any other condition of the licence concerned which is affected.

35

(10)   

Where Monitor includes a condition under subsection (2) by modifying a

standard condition of the licence concerned, the modification does not prevent

any other part of the condition from continuing to be regarded as a standard

condition for the purposes of this Chapter.

(11)   

A reference in this section to failing to discharge functions includes a reference

40

to failing to discharge those functions properly.

(12)   

Omit section 52 of the National Health Service Act 2006 (failing NHS

foundation trusts); and in consequence of that, omit—

(a)   

section 39(2)(f) of that Act (copy of notice under section 52 of that Act

to be on register), and

45

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 5 — Pricing

112

 

(b)   

paragraph 22(1)(f) of Schedule 7 to that Act (copy of that notice to be

available for public inspection).

Chapter 5

Pricing

114     

Price payable by commissioners for NHS services

5

(1)   

If a health care service is specified in the national tariff (as to which, see section

115), the price payable for the provision of that service for the purposes of the

NHS is (subject to sections 122 and 123) such price as is determined in

accordance with the national tariff on the basis of the price (referred to in this

Chapter as “the national price”) specified in the national tariff for that service.

10

(2)   

If a health care service is not specified in the national tariff, the price payable

for the provision of that service for the purposes of the NHS is such price as is

determined in accordance with the rules provided for in the national tariff for

that purpose.

115     

The national tariff

15

(1)   

Monitor must publish a document, to be known as “the national tariff”,

which—

(a)   

specifies certain health care services which are or may be provided for

the purposes of the NHS,

(b)   

specifies the method used for determining the national prices of those

20

services,

(c)   

specifies the national price of each of those services,

(d)   

provides for rules for the variation of the national price of a service

according to such aspects of the provision of the service, and such other

matters, as are specified in the national tariff, and

25

(e)   

provides rules for determining the price payable for the provision for

those purposes of health care services which are not specified under

subsection (1)(a).

(2)   

The national tariff must also provide for rules under which the commissioner

of a health care service specified in the national tariff and the providers of that

30

service may agree to vary—

(a)   

the specification of the service under subsection (1)(a), or

(b)   

the national price of the service.

(3)   

The national tariff may also provide for rules relating to the making of

payments to the provider of a health care service for the provision of that

35

service.

(4)   

The national tariff must include guidance as to the application of rules

provided for under subsections (1)(d) and (e) and (2).

(5)   

Different methods may be specified under subsection (1)(b) for different

descriptions of health care service.

40

(6)   

The national tariff may, in the case of a specified health care service or health

care services of a specified description, specify different national prices or

provide for different rules under subsection (1)(d)—

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 5 — Pricing

113

 

(a)   

according to whether the service has been designated under section 76;

(b)   

in relation to different descriptions of provider.

(7)   

A description for the purposes of subsection (6)(b) may not be framed by

reference to—

(a)   

whether the provider is in public or private ownership, or

5

(b)   

some other aspect of the status of the provider.

(8)   

The national tariff may not specify a national price for a health care service

provided pursuant to the public health functions of the Secretary of State, or of

a local authority, under the National Health Service Act 2006.

(9)   

The national tariff has effect for such period as is specified in the national tariff

10

(or, where a new edition of the national tariff takes effect before the end of that

period, until that new edition takes effect).

(10)   

In exercising its functions under this Chapter, Monitor must (in addition to the

matters specified in section 58) have regard to the objectives and requirements

for the time being specified in the mandate published under section 13A of the

15

National Health Service Act 2006.

116     

The national tariff: further provision

(1)   

The ways in which a health care service may be specified in the national tariff

under section 115(1)(a) include in particular—

(a)   

specifying it by reference to its components,

20

(b)   

specifying it as a service (a “bundle”) that comprises two or more health

care services which together constitute a form of treatment,

(c)   

specifying it as a service in a group of standardised services.

(2)   

Where a service is specified in accordance with subsection (1)(a), the national

tariff must specify a national price for each component of the service.

25

(3)   

Where a service is specified in accordance with subsection (1)(b), the national

tariff must specify a national price for the bundle.

(4)   

Where a service is specified in accordance with subsection (1)(c), the national

tariff must specify a single price as the national price for each service in the

group.

30

(5)   

Neither a component specified in accordance with subsection (1)(a) nor a

service comprised in a bundle specified in accordance with subsection (1)(b) is

to be treated for the purposes of this Part as a service capable of being provided

separately for the purposes of the NHS except—

(a)   

where the component, or the service comprised in the bundle, is

35

specified separately under subsection (1)(a) of section 115, or

(b)   

in accordance with rules under subsection (2) of that section.

117     

Consultation on proposals for the national tariff

(1)   

Before publishing the national tariff, Monitor must send a notice to—

(a)   

each commissioning consortium,

40

(b)   

each licence holder, and

(c)   

such other persons as it considers appropriate.

(2)   

Monitor must also publish the notice.

 
 

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 5 — Pricing

114

 

(3)   

The notice must specify—

(a)   

the health care services which Monitor proposes to specify in the

national tariff,

(b)   

the method or methods it proposes to use for determining the national

prices of those services,

5

(c)   

the national price that is determined as the national price of each of

those services by using the applicable method, and

(d)   

the rules for which Monitor proposes to provide for determining the

price payable for the provision for the purposes of the NHS of health

care services not specified under subsection (3)(a).

10

(4)   

The notice must also specify the rules for which Monitor proposes to provide

in the national tariff under which the commissioner of a health care service and

a provider of the service would be entitled to vary—

(a)   

the specification of the service in the national tariff, or

(b)   

the national price of the service.

15

(5)   

The health care services specified for the purposes of subsection (3)(a) are only

such services as the National Health Service Commissioning Board considers

should be so specified and—

(a)   

as the Board and Monitor agree will be so specified, or

(b)   

in default of agreement, as are determined by arbitration as being

20

services that will be so specified.

(6)   

In exercising functions under subsection (5), the Board and Monitor must act

with a view to securing the standardisation throughout England of the

specification of health care services in the national tariff under section

115(1)(a).

25

(7)   

A method specified for the purposes of subsection (3)(b) is only such method

as Monitor considers should be so specified and—

(a)   

as Monitor and the Board agree will be so specified, or

(b)   

in default of agreement, as is determined by arbitration as being the

method that will be so specified.

30

(8)   

The prices specified for the purposes of subsection (3)(c) are only such prices

as Monitor considers should be so specified and—

(a)   

as Monitor and the Board agree will be so specified, or

(b)   

in default of agreement, as are determined by arbitration as being the

prices that will be so specified.

35

(9)   

The rules specified for the purposes of subsection (3)(d) are only such rules as

Monitor considers should be so specified and—

(a)   

as Monitor and the Board agree will be so specified, or

(b)   

in default of agreement, as are determined by arbitration as being the

rules that will be so specified.

40

(10)   

The rules specified for the purposes of subsection (4) are only such rules as the

National Health Service Commissioning Board considers should be so

specified and—

(a)   

as the Board and Monitor agree will be so specified, or

(b)   

in default of agreement, as are determined by arbitration as being the

45

rules that will be so specified.

 
 

 
previous section contents continue
 

© Parliamentary copyright
Revised 1 April 2011