Health and Social Care Bill

Session 2010 - 11
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 1 — The health service in England
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Regulations as to the exercise by local authorities of certain public health
functions
(1)
After section 6B of the National Health Service Act 2006 insert—
“Regulations as to the exercise of functions
6C
Regulations as to the exercise by local authorities of certain public
5
health functions
(1)
Regulations may require a local authority to exercise any of the public
health functions of the Secretary of State (so far as relating to the health
of the public in the authority’s area) by taking such steps as may be
prescribed.
10
(2)
Regulations may require a local authority to exercise its public health
functions by taking such steps as may be prescribed.
(3)
The making of regulations under subsection (1) does not prevent the
Secretary of State from taking any step that a local authority is required
to take under the regulations.
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(4)
In this section, “local authority” has the same meaning as in section 2B.”
(2)
In section 272 of that Act (orders, regulations, rules and directions), in
subsection (6) before paragraph (za) insert—
“(zza)
regulations under section 6C(1) or (2),”.
15
Regulations relating to EU obligations
20
After section 6C of the National Health Service Act 2006 insert—
“6D
Regulations relating to EU obligations
(1)
Regulations may require the Board or a commissioning consortium to
exercise a specified EU health function.
(2)
In subsection (1)—
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(a)
“EU health function” means any function exercisable by the
Secretary of State for the purpose of implementing EU
obligations that concern, or are connected to, the health service,
other than a function of making subordinate legislation (within
the meaning of the Interpretation Act 1978), and
30
(b)
“specified” means specified in the regulations.
(3)
The Secretary of State may give directions to the Board or a
commissioning consortium about its exercise of any of its functions
under regulations under subsection (1).
(4)
The Secretary of State may, for the purpose of securing compliance by
35
the United Kingdom with EU obligations, give directions to the Board
or a commissioning consortium about the exercise of any of its
functions.”

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Regulations as to the exercise of functions by the Board or consortia
(1)
After section 6D of the National Health Service Act 2006 insert—
“6E
Regulations as to the exercise of functions by the Board or consortia
(1)
Regulations may impose requirements (to be known as “standing
rules”) in accordance with this section on the Board or on
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commissioning consortia.
(2)
The regulations may, in relation to the commissioning functions of the
Board or consortia, make provision—
(a)
requiring the Board or consortia to arrange for specified
treatments or other specified services to be provided or to be
10
provided in a specified manner or within a specified period;
(b)
as to the arrangements that the Board or consortia must make
for the purpose of making decisions as to—
(i)
the treatments or other services that are to be provided;
(ii)
the manner in which or period within which specified
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treatments or other specified services are to be provided;
(iii)
the persons to whom specified treatments or other
specified services are to be provided;
(c)
as to the arrangements that the Board or consortia must make
for enabling persons to whom specified treatments or other
20
specified services are to be provided to make choices with
respect to specified aspects of them.
(3)
Regulations by virtue of paragraph (b) of subsection (2) may, in
particular, make provision—
(a)
requiring the Board or a consortium to take specified steps
25
before making decisions as to the matters mentioned in that
paragraph;
(b)
as to reviews of, or appeals from, such decisions.
(4)
The regulations may—
(a)
specify matters for which provision must be made in
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commissioning contracts entered into by the Board or consortia;
(b)
require the Board to draft terms and conditions making
provision for those matters;
(c)
require the Board or consortia to incorporate the terms and
conditions drafted by virtue of paragraph (b) in commissioning
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contracts entered into by the Board or (as the case may be)
consortia.
(5)
The regulations must—
(a)
require the Board to draft such terms and conditions as the
Board considers are, or might be, appropriate for inclusion in
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commissioning contracts entered into by the Board or consortia
(other than terms and conditions that the Board is required to
draft by virtue of subsection (4)(a));
(b)
authorise the Board to require consortia to incorporate terms
and conditions prepared by virtue of paragraph (a) in their
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commissioning contracts;
(c)
authorise the Board to draft model commissioning contracts.

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Part 1 — The health service in England
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(6)
The regulations may require the Board to consult prescribed persons
before exercising any of its functions by virtue of subsection (4)(b) or
(5).
(7)
The regulations may require the Board or consortia in the exercise of
any of its or their functions—
5
(a)
to provide information of a specified description to specified
persons in a specified manner;
(b)
to act in a specified manner for the purpose of securing
compliance with EU obligations;
(c)
to do such other things as the Secretary of State considers
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necessary for the purposes of the health service.
(8)
The regulations may not impose a requirement on only one
consortium.
(9)
If regulations under this section are made so as to come into force on a
day other than 1 April, the Secretary of State must—
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(a)
publish a statement explaining the reasons for making the
regulations so as to come into force on such a day, and
(b)
lay the statement before Parliament.
(10)
In this section—
(a)
“commissioning contracts”, in relation to the Board or
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commissioning consortia, means contracts entered into by the
Board or (as the case may be) consortia in the exercise of its or
their commissioning functions;
(b)
“commissioning functions”, in relation to the Board or
commissioning consortia, means the functions of the Board or
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(as the case may be) consortia in arranging for the provision of
services as part of the health service;
(c)
“specified” means specified in the regulations.”
(2)
In section 272 of that Act (orders, regulations, rules and directions), in
subsection (6) after paragraph (zza) insert—
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“(zzb)
regulations under section 6E, except where they do not include
provision by virtue of subsection (7)(c) of that section,”.
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Functions of Special Health Authorities
(1)
Section 7 of the National Health Service Act 2006 (distribution of health service
functions) is amended as follows.
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(2)
For subsection (1) substitute—
“(1)
The Secretary of State may direct a Special Health Authority to exercise
any functions of the Secretary of State or any other person which relate
to the health service in England and are specified in the direction.
(1A)
Before exercising the power in subsection (1) in relation to a function of
40
a person other than the Secretary of State, the Secretary of State must
consult that person.
(1B)
Regulations may provide that a Special Health Authority specified in
the regulations is to have such additional functions in relation to the
health service in England as may be so specified.”
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(3)
Omit subsections (2) and (3).
(4)
For the heading to that section, and for the cross-heading preceding it,
substitute “Functions of Special Health Authorities”.
(5)
In section 272 of that Act (orders, regulations, rules and directions), in
subsection (6) after paragraph (zzb) insert—
5
“(zzc)
regulations under section 7(1B),”.
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Exercise of public health functions of the Secretary of State
After section 7 of the National Health Service Act 2006 insert—
“Exercise of Secretary of State’s public health functions
7A
Exercise of Secretary of State’s public health functions
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(1)
The Secretary of State may arrange for a body mentioned in subsection
(2) to exercise any of the public health functions of the Secretary of
State.
(2)
Those bodies are—
(a)
the Board;
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(b)
a commissioning consortium;
(c)
a local authority (within the meaning of section 2B).
(3)
The power conferred by subsection (1) includes power to arrange for
such a body to exercise any functions of the Secretary of State that are
exercisable in connection with those functions (including the powers
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conferred by section 12).
(4)
Where the Secretary of State arranges (under subsection (1)) for the
Board to exercise a function, the Board may arrange for a
commissioning consortium to exercise that function.
(5)
Powers under this section may be exercised on such terms as may be
25
agreed, including terms as to payment.”
Further provision about the Board
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The NHS Commissioning Board: further provision
(1)
In Part 2 of the National Health Service Act 2006 (health service bodies), before
Chapter 1 insert—
30
“Chapter A1
The National Health Service Commissioning Board
Secretary of State’s mandate to the Board
13A
Mandate to Board
(1)
Before the start of each financial year, the Secretary of State must
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publish and lay before Parliament a document to be known as “the
mandate”.

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(2)
The Secretary of State must specify in the mandate—
(a)
the objectives that the Secretary of State considers the Board
should seek to achieve in the exercise of its functions during
that financial year, and
(b)
any requirements that the Secretary of State considers it
5
necessary to impose on the Board for the purpose of ensuring
that it achieves those objectives.
(3)
The Secretary of State must also specify in the mandate—
(a)
the amount that the Secretary of State has decided to allot to the
Board under section 223B in respect of that year, and
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(b)
the amount that the Secretary of State has decided to specify as
the Board’s resource allocation in respect of that year under
section 223C.
(4)
The Secretary of State may specify in the mandate—
(a)
any objectives that the Secretary of State considers the Board
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should seek to achieve in the exercise of its functions during any
subsequent financial years;
(b)
any requirements that the Secretary of State considers it
necessary to impose on the Board for the purpose of ensuring
that it achieves those objectives;
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(c)
any proposals that the Secretary of State has as to the amount
that the Secretary of State will allot to the Board under section
223B in respect of subsequent financial years;
(d)
any proposals that the Secretary of State has as to the amount
that the Secretary of State will specify as the Board’s resource
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allocation under section 223C in respect of subsequent financial
years.
(5)
The Secretary of State may also specify in the mandate the matters by
reference to which the Secretary of State proposes to assess the Board’s
performance in relation to the first financial year to which the mandate
30
relates.
(6)
The Secretary of State may not specify in the mandate an objective or
requirement about the exercise of the Board’s functions in relation to
only one commissioning consortium.
(7)
The Board must—
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(a)
seek to achieve the objectives specified in the mandate, and
(b)
comply with any requirements so specified.
(8)
Before specifying any objectives or requirements in the mandate, the
Secretary of State must consult—
(a)
the Board, and
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(b)
such other persons as the Secretary of State considers
appropriate.
(9)
In this section, “financial year” includes the period which begins on the
day the Board is established and ends on the following 31 March.
13B
The mandate: supplemental provision
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(1)
The Secretary of State must keep the Board’s performance in achieving
any objectives or requirements specified in the mandate under review.

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(2)
If the Secretary of State makes a new allotment under section 223B(3) or
varies the Board’s resource allocation under section 223C(2), the
Secretary of State must revise the mandate accordingly.
(3)
The Secretary of State may make any other revision to the mandate only
if—
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(a)
the Board agrees to the revision,
(b)
a parliamentary general election takes place, or
(c)
the Secretary of State considers that there are exceptional
circumstances that make the revision necessary.
(4)
If the Secretary of State revises the mandate, the Secretary of State
10
must—
(a)
publish the mandate (as so revised), and
(b)
lay it before Parliament, together with an explanation of the
reasons for making the revision.
General duties of the Board
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13C
Duty as to effectiveness, efficiency etc.
The Board must exercise its functions effectively, efficiently and
economically.
13D
Duty as to improvement in quality of services
(1)
The Board must exercise its functions with a view to securing
20
continuous improvement in the quality of services provided to
individuals for or in connection with—
(a)
the prevention, diagnosis or treatment of illness, or
(b)
the protection or improvement of public health.
(2)
In discharging its duty under subsection (1), the Board must, in
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particular, act with a view to securing continuous improvement in the
outcomes that are achieved from the provision of the services.
(3)
The outcomes relevant for the purposes of subsection (2) include, in
particular, outcomes which show—
(a)
the effectiveness of the services,
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(b)
the safety of the services, and
(c)
the quality of the experience undergone by patients.
(4)
In discharging its duty under subsection (1), the Board must have
regard to—
(a)
any document published by the Secretary of State for the
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purposes of this section, and
(b)
the quality standards prepared by NICE under section 231 of
the Health and Social Care Act 2011.
13E
Duty as to promoting autonomy
In exercising its functions, the Board must, so far as is consistent with
40
the interests of the health service, act with a view to securing—
(a)
that any other person exercising functions in relation to the
health service or providing services for its purposes is free to

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exercise those functions or provide those services in the manner
it considers most appropriate, and
(b)
that unnecessary burdens are not imposed on any such person.
13F
Duty as to reducing inequalities, promoting patient involvement etc.
(1)
The Board must, in the exercise of its functions, have regard to the need
5
to—
(a)
reduce inequalities between patients with respect to their ability
to access health services;
(b)
reduce inequalities between patients with respect to the
outcomes achieved for them by the provision of health services;
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(c)
promote the involvement of patients and their carers in
decisions about the provision of health services to them;
(d)
enable patients to make choices with respect to aspects of health
services provided to them.
(2)
In this section, “health services” means services provided as part of the
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health service.
13G
Duty to obtain appropriate advice
The Board must make arrangements with a view to securing that it
obtains advice appropriate for enabling it effectively to discharge its
functions from persons with professional expertise relating to the
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physical or mental health of individuals.
13H
Duty to promote innovation
(1)
The Board must, in the exercise of its functions, promote innovation in
the provision of health services (including innovation in the
arrangements made for their provision).
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(2)
The Board may make payments as prizes to promote innovation in the
provision of health services.
(3)
A prize may relate to—
(a)
work at any stage of innovation (including research);
(b)
work done at any time (including work before the
30
commencement of section 19 of the Health and Social Care Act
2011).
(4)
In this section “health services” means services provided as part of the
health service.
13I
Duty in respect of research
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The Board must, in the exercise of its functions, have regard to the need
to promote—
(a)
research on matters relevant to the health service, and
(b)
the use in the health service of evidence obtained from research.
13J
Duty to encourage integrated working
40
(1)
The Board must, for the purpose of advancing the health and wellbeing
of the people of England, exercise its functions with a view to
encouraging commissioning consortia to work closely with local
authorities in arranging for the provision of services.