|
| |
|
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 |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
(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. |
| |
|
| |
|
| |
|
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 |
| |
| 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 |
| |
| |
(a) | the circumstances in which Monitor is likely to impose a discretionary |
| 10 |
| |
(b) | the circumstances in which Monitor may not impose a discretionary |
| |
| |
(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 |
| |
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 |
| |
| |
(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 |
| |
(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. |
| |
|
| |
|
| |
|
(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). |
| |
| |
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 |
| |
| 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 |
| |
| 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 |
| |
| 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. |
| |
|
| |
|
| |
|
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 |
| |
| |
(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 |
| |
(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) |
| |
| |
(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 |
| |
| 45 |
|
| |
|
| |
|
(b) | paragraph 22(1)(f) of Schedule 7 to that Act (copy of that notice to be |
| |
available for public inspection). |
| |
| |
| |
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 |
| |
| |
| 15 |
(1) | Monitor must publish a document, to be known as “the national tariff”, |
| |
| |
(a) | specifies certain health care services which are or may be provided for |
| |
| |
(b) | specifies the method used for determining the national prices of those |
| 20 |
| |
(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 |
| |
| |
(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 |
| |
(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)— |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| 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. |
| |
|
| |
|
| |
|
(3) | The notice must specify— |
| |
(a) | the health care services which Monitor proposes to specify in the |
| |
| |
(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 |
| |
| 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 |
| |
| |
(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. |
| |
|
| |
|