Session 2010 - 11
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Health and Social Care Bill


Health and Social Care Bill
Part 8 — The National Institute for Health and Care Excellence

213

 

Functions: advice, guidance etc.

234     

Advice, guidance, information and recommendations

(1)   

Regulations may confer functions on NICE in relation to the giving of advice

or guidance, provision of information or making of recommendations about

any matter concerning or connected with the provision of—

5

(a)   

NHS services,

(b)   

public health services, or

(c)   

social care in England.

(2)   

The regulations may provide that a function conferred under subsection

(1)(a)—

10

(a)   

is only exercisable on the direction of the Secretary of State or the Board;

(b)   

is subject to directions given by the Secretary of State or (as the case

may be) the Board about NICE’s exercise of the function.

(3)   

The regulations may provide that a function conferred under subsection (1)(b)

or (c)—

15

(a)   

is only exercisable on the direction of the Secretary of State;

(b)   

is subject to directions given by the Secretary of State about NICE’s

exercise of the function.

(4)   

Provision made under subsection (2)(b) or (3)(b) must not permit a direction to

be given about the substance of advice, guidance or recommendations of

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NICE.

(5)   

The regulations may make provision about—

(a)   

the persons who may request or require that advice, guidance,

information or recommendations be given, provided or (as the case

may be) made by NICE,

25

(b)   

the publication or other dissemination of the advice, guidance,

information or recommendations (whether by NICE, the Secretary of

State or the Board), and

(c)   

the imposition by NICE of charges for or in connection with the giving

of advice or guidance, provision of information or making of

30

recommendations.

(6)   

Provision made under subsection (5)(c) may include provision for charges to

be calculated on the basis NICE considers to be the appropriate commercial

basis.

(7)   

The regulations must make provision about—

35

(a)   

the establishment by NICE of procedures for the giving of advice or

guidance, provision of information or making of recommendations

under the regulations, and

(b)   

consultation by NICE in establishing the procedures.

(8)   

The regulations may make provision requiring specified health or social care

40

bodies, or health or social care bodies of a specified description, to—

(a)   

have regard to specified advice or guidance, or advice or guidance of a

specified description, given by NICE pursuant to the regulations;

(b)   

comply with specified recommendations, or recommendations of a

specified description, made by NICE pursuant to the regulations.

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Health and Social Care Bill
Part 8 — The National Institute for Health and Care Excellence

214

 

(9)   

Provision made under subsection (8) may require a specified body, or bodies

of a specified description, to have regard to advice or guidance or to comply

with recommendations—

(a)   

generally in the exercise of functions, or

(b)   

in the exercise of specified functions or functions of a specified

5

description.

(10)   

In this section—

“health or social care body” means any public body other than a local

authority exercising functions in connection with the provision of

health services or of social care in England;

10

“local authority” means—

(a)   

a county council in England;

(b)   

a district council in England, other than a council for a district

in a county for which there is a county council;

(c)   

a London borough council;

15

(d)   

the Council of the Isles of Scilly;

(e)   

the Common Council of the City of London;

‘“public body” means a body or other person whose functions—

(a)   

are of a public nature, or

(b)   

include functions of that nature,

20

but, in the latter case, the body or person is a public body to the extent

only of those functions;

“specified” means specified in the regulations.

235     

NICE recommendations: appeals

(1)   

Regulations under section 234 may make provision about appeals against

25

recommendations made by NICE pursuant to the regulations.

(2)   

The regulations may in particular include provision about—

(a)   

the types of recommendations in relation to which an appeal may be

brought,

(b)   

the persons who may bring an appeal,

30

(c)   

the grounds on which an appeal may be brought, and

(d)   

the persons by whom an appeal is to be heard.

236     

Training

(1)   

Regulations may confer functions on NICE in relation to providing, or

facilitating the provision of, training in connection with any matter concerning

35

or connected with the provision of—

(a)   

NHS services,

(b)   

public health services, or

(c)   

social care in England.

(2)   

The regulations may provide that a function conferred under subsection

40

(1)(a)—

(a)   

is only exercisable on the direction of the Board;

(b)   

is subject to directions given by the Board about NICE’s exercise of the

function.

 
 

Health and Social Care Bill
Part 8 — The National Institute for Health and Care Excellence

215

 

(3)   

The regulations may provide that a function conferred under subsection (1)(b)

or (c)—

(a)   

is only exercisable on the direction of the Secretary of State;

(b)   

is subject to directions given by the Secretary of State about NICE’s

exercise of the function.

5

(4)   

The regulations may provide for the imposition by NICE of charges for or in

connection with the provision, or the facilitation of the provision, of training.

(5)   

Provision made under subsection (4) may include provision for charges to be

calculated on the basis NICE considers to be the appropriate commercial basis.

237     

Advisory services

10

(1)   

Regulations may confer functions on NICE in relation to the giving of advice

to persons (whether or not in the United Kingdom) in relation to any matter

concerning or connected with—

(a)   

the provision of health care,

(b)   

the protection or improvement of public health, or

15

(c)   

the provision of social care.

(2)   

The regulations may make provision about the imposition of charges by NICE

for or in connection with the giving of such advice.

(3)   

Provision made under subsection (2) may include provision for charges to be

calculated on the basis NICE considers to be the appropriate commercial basis.

20

(4)   

In this Part “health care” includes all forms of health care provided for

individuals whether relating to physical or mental health and also includes

procedures that are similar to forms of medical or surgical care but are not

provided in connection with a medical condition.

238     

Commissioning guidance

25

(1)   

The Board may direct NICE to exercise any of the Board’s functions in relation

to the preparation of the guidance required to be published by the Board under

section 14V of the National Health Service Act 2006 (the “commissioning

guidance”).

(2)   

A direction under subsection (1) may direct NICE to exercise the functions in

30

such manner and within such period as may be specified in the direction.

(3)   

If requested to do so, NICE must—

(a)   

provide the Board with information or advice on such matters

connected to the Board’s functions in respect of commissioning

guidance as may be specified in the request, and

35

(b)   

disseminate commissioning guidance in such manner as may be

specified in the request.

 
 

Health and Social Care Bill
Part 8 — The National Institute for Health and Care Excellence

216

 

Functions: other

239     

NICE’s charter

(1)   

Regulations may make provision requiring NICE to publish a document

explaining the functions of NICE and how NICE intends to exercise them

(referred to in this section as “the charter”).

5

(2)   

The regulations may, in particular, make provision about—

(a)   

the information to be provided in the charter,

(b)   

the timing of preparation of the charter,

(c)   

review and revision by NICE of the charter, and

(d)   

the manner in which the charter must or may be published.

10

240     

Additional functions

(1)   

NICE may do any of the following—

(a)   

acquire, produce, manufacture and supply goods,

(b)   

acquire land by agreement and manage and deal with land,

(c)   

supply accommodation to any person,

15

(d)   

supply services to any person and provide new services,

(e)   

provide instruction for any person, and

(f)   

develop and exploit ideas and exploit intellectual property.

(2)   

But NICE may exercise a power under subsection (1) only—

(a)   

if doing so is connected with the provision of health care or social care,

20

and

(b)   

to the extent that its exercise does not to any significant extent interfere

with the performance by NICE of its functions.

(3)   

NICE may—

(a)   

charge for anything it does in the exercise of a power under

25

subsection (1), and

(b)   

calculate any such charge on the basis that it considers to be the

appropriate commercial basis.

241     

Arrangements with other bodies

(1)   

NICE may arrange with any person or body to provide, or assist in providing,

30

any service which NICE is required or authorised to provide by virtue of this

Part.

(2)   

The power under this section may be exercised on such terms as may be

agreed, including terms as to the making of payments by or to NICE.

242     

Failure by NICE to discharge any of its functions

35

(1)   

The Secretary of State may give a direction to NICE if the Secretary of State

considers that NICE—

(a)   

is failing or has failed to discharge any of its functions, or

(b)   

is failing or has failed properly to discharge any of its functions.

 
 

Health and Social Care Bill
Part 8 — The National Institute for Health and Care Excellence

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(2)   

A direction under subsection (1) may direct NICE to discharge such of those

functions, and in such manner and within such period or periods, as may be

specified in the direction.

(3)   

If NICE fails to comply with a direction under subsection (1), the Secretary of

State may—

5

(a)   

discharge the functions to which it relates, or

(b)   

make arrangements for any other person to discharge them on the

Secretary of State’s behalf.

243     

Protection from personal liability

(1)   

Section 265 of the Public Health Act 1875 (which relates to the protection of

10

members and officers of certain authorities from personal liability) has effect as

if there were included in the authorities referred to in that section a reference

to NICE.

(2)   

In its application to NICE as provided for by subsection (1), section 265 of that

Act has effect as if any reference in that section to the Public Health Act 1875

15

were a reference to this Act.

Supplementary

244     

Interpretation of this Part

In this Part—

“the Board” means the National Health Service Commissioning Board;

20

“health care” has the meaning given by section 237;

“the health service” has the same meaning as in the National Health

Service Act 2006 (see section 275(1) of that Act);

“health services” has the meaning given by section 230;

“NHS services” has the meaning given by section 231;

25

“public health services” has the meaning given by section 231;

“quality standard” has the meaning given by section 231;

“social care” has the meaning given by section 230.

245     

Dissolution of predecessor body

The Special Health Authority known as the National Institute for Health and

30

Clinical Excellence is abolished.

246     

Consequential and transitional provision

(1)   

Schedule 18 (which contains consequential provision) has effect.

(2)   

A statement of standards prepared and published by the Institute before

commencement is to be treated on and after commencement as if it were a

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quality standard—

(a)   

prepared and published by NICE in accordance with section 231,

(b)   

endorsed under subsection (5) of that section, and

(c)   

in respect of which the transitional commissioner is the relevant

commissioner for the purposes of that section.

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Health and Social Care Bill
Part 9 — Health and adult social care services: information
Chapter 1 — Information standards

218

 

(3)   

Subsections (4) to (6) apply to a case where before commencement—

(a)   

the Secretary of State has referred a matter to the Institute for the

purpose of preparing and publishing a statement of standards, but

(b)   

the Institute has not published the statement.

(4)   

The referral by the Secretary of State to the Institute of the matter is to be

5

treated on and after commencement as if it were a direction given to NICE by

the transitional commissioner for the preparation of a quality standard in

relation to that matter under section 231(1); and the transitional commissioner

is to be treated as the relevant commissioner for the purposes of that section.

(5)   

Anything done by the Institute before commencement in relation to the matter

10

is to be treated on and after commencement as having been done by NICE in

pursuance of the direction.

(6)   

Consultation undertaken by the Institute before commencement in relation to

the matter is to be treated on and after commencement as if it were consultation

by NICE under section 231(3) in relation to the preparation of the quality

15

standard.

(7)   

A procedure established by the Institute before commencement for the

preparation of statements of standards is to be treated on and after

commencement as if it were a procedure established by NICE in accordance

with section 231(7) for the preparation of quality standards.

20

(8)   

For the purposes of this section “the transitional commissioner” is the Secretary

of State; but the Secretary of State, after consulting the Board, may direct that

in relation to a particular statement of standards or matter the transitional

commissioner is—

(a)   

the Board, or

25

(b)   

both the Secretary of State and the Board.

(9)   

In this section—

“commencement” means the commencement of section 231;

“the Institute” means the Special Health Authority known as the National

Institute for Health and Clinical Excellence;

30

“statement of standards” means a document containing advice to the

Secretary of State in relation to the quality of the provision of health

care prepared and published by the Institute pursuant to the directions

given to the Institute by the Secretary of State on 27 July 2009.

Part 9

35

Health and adult social care services: information

Chapter 1

Information standards

247     

Powers to publish information standards

(1)   

The Secretary of State or the National Health Service Commissioning Board

40

(referred to in this Chapter as “the Board”) may prepare and publish an

information standard.

 
 

Health and Social Care Bill
Part 9 — Health and adult social care services: information
Chapter 1 — Information standards

219

 

(2)   

For the purposes of this Part “an information standard” is a document

containing standards in relation to the processing of information.

(3)   

The Secretary of State may exercise the power under subsection (1) only in

relation to information concerning, or connected with, the provision of health

services or of adult social care in England.

5

(4)   

The Board may exercise the power under subsection (1) only in relation to

information concerning, or connected with, the provision of NHS services.

(5)   

An information standard must include guidance about the implementation of

the standard.

(6)   

The following must have regard to an information standard published under

10

this section—

(a)   

the Secretary of State;

(b)   

the Board;

(c)   

any public body which exercises functions to which the information

standard relates in connection with the provision of health services or

15

of adult social care in England;

(d)   

any person (other than a public body) who provides health services, or

adult social care in England, to which the information standard relates

pursuant to arrangements made with a public body exercising

functions in connection with the provision of such services or care.

20

(7)   

In this section—

“adult social care”—

(a)   

includes all forms of personal care and other practical assistance

provided for individuals who by reason of age, illness,

disability, pregnancy, childbirth, dependence on alcohol or

25

drugs, or any other similar circumstances, are in need of such

care or other assistance, but

(b)   

does not include anything provided by an establishment or

agency for which Her Majesty’s Chief Inspector of Education,

Children’s Services and Skills is the registration authority

30

under section 5 of the Care Standards Act 2000;

“health services” means services which must or may be provided as part

of the health service in England; and for that purpose “the health

service” has the same meaning as in the National Health Service Act

2006 (see section 275(1) of that Act);

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“NHS services” means services the provision of which is arranged by the

Board or a commissioning consortium under the National Health

Service Act 2006 (including pursuant to arrangements made under

section 7A or 12 of that Act);

“processing” has the same meaning as in the Data Protection Act 1998 (see

40

section 1 of that Act);

“public body” means a body or other person whose functions—

(a)   

are of a public nature, or

(b)   

include functions of that nature,

but in the latter case, the body or person is a public body to the extent

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only of those functions.

 
 

 
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