Session 2010 - 11
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Health and Social Care Bill


Health and Social Care Bill
Part 11 — Miscellaneous

241

 

insert—

“(4A)   

Where there is authority to give treatment by virtue of subsection (2)(a),

the certificate requirement is also met in respect of the treatment if the

approved clinician in charge of the treatment has certified in writing

that the patient has capacity to consent to the treatment and has

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consented to it.

(4B)   

But, if the patient has not attained the age of 18, subsection (4A) does

not apply to section 58A type treatment.”

(3)   

In section 64E (treatment of child community patients), in subsection (7)—

(a)   

for “(3) to (9)” substitute “(3) to (4A) and (5) to (9)”, and

10

(b)   

at the end insert “; and for the purpose of this subsection, subsection

(4A) of section 64C above has effect as if—

(a)   

the references to treatment were references only to

section 58 type treatment,

(b)   

the reference to subsection (2)(a) of section 64C were a

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reference to subsection (6)(a) of this section, and

(c)   

the reference to capacity to consent were a reference to

competence to consent.”

(4)   

After section 64F insert—

“64FA   

Withdrawal of consent

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(1)   

Where the consent of a patient to any treatment has been given as

mentioned in section 64C(2)(a) above for the purposes of section 64B or

64E above, the patient may at any time before the completion of the

treatment withdraw his consent, and those sections shall then apply as

if the remainder of the treatment were a separate form of treatment.

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(2)   

Subsection (3) below applies where—

(a)   

the consent of a patient to any treatment has been given as

mentioned in section 64C(2)(a) above for the purposes of section

64B or 64E above; but

(b)   

before the completion of the treatment, the patient loses

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capacity or (as the case may be) competence to consent to the

treatment.

(3)   

The patient shall be treated as having withdrawn his consent and

section 64B or (as the case may be) section 64E above shall then apply

as if the remainder of the treatment were a separate form of treatment.

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(4)   

Without prejudice to the application of subsections (1) to (3) above to

any treatment given under the plan of treatment to which a patient has

consented, a patient who has consented to such a plan may at any time

withdraw his consent to further treatment, or to further treatment of

any description, under the plan.

40

(5)   

This section shall not preclude the continuation of any treatment, or of

treatment under any plan, pending compliance with section 58, 58A,

64B or 64E above if the approved clinician in charge of the treatment

considers that the discontinuance of the treatment, or of treatment

under the plan, would cause serious suffering to the patient.”

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(5)   

In section 64H (certificates: supplementary provision)—

 
 

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Part 11 — Miscellaneous

242

 

(a)   

in subsection (2), at the end insert “; and the regulations may make

different provision for the different descriptions of Part 4A certificate”,

and

(b)   

in subsections (3), (4) and (5), after “Part 4A certificate” insert “that falls

within section 64C(4) above”.

5

(6)   

In section 17B of the Mental Health Act 1983 (conditions of community

treatment order), in subsection (3)(b), after “Part 4A of this Act” insert “that

falls within section 64C(4) below”.

(7)   

In section 61 of that Act (review of treatment), in subsection (1), after “that

section)” insert “that falls within section 64C(4) below”.

10

(8)   

In section 62A of that Act (treatment on recall of community patient or

revocation of order), in subsection (5), after “applies” insert “and the Part 4A

certificate falls within section 64C(4) below”.

(9)   

In subsection (6) of that section, after “58 or 58A above” insert “or 64B or 64E

below”.

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(10)   

After that subsection insert—

“(6A)   

In a case where this section applies and the certificate requirement is no

longer met for the purposes of section 64C(4A) below, the continuation

of any treatment, or of treatment under any plan, pending compliance

with section 58 or 58A above or 64B or 64E below shall not be precluded

20

if the approved clinician in charge of the treatment considers that the

discontinuance of the treatment, or of treatment under the plan, would

cause serious suffering to the patient.”

Transfer schemes

292     

Transfer schemes

25

(1)   

The Secretary of State may make a property transfer scheme or a staff transfer

scheme in connection with—

(a)   

the establishment or abolition of a body by this Act, or

(b)   

the modification of the functions of a body or other person by or under

this Act.

30

(2)   

A property transfer scheme is a scheme for the transfer from a body or other

person mentioned in the first column of the Table in Schedule 23 of any

property, rights or liabilities, other than rights or liabilities under or in

connection with a contract of employment, to a body or other person

mentioned in the corresponding entry in the second column.

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(3)   

A staff transfer scheme is a scheme for the transfer from a body or other person

mentioned in the first column of the Table in Schedule 24 of any rights or

liabilities under or in connection with a contract of employment to a body or

other person mentioned in the corresponding entry in the second column.

(4)   

The Secretary of State may direct the Board or a qualifying company to exercise

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the functions of the Secretary of State in relation to the making of a property

transfer scheme or a staff transfer scheme in connection with the abolition of—

(a)   

one or more Primary Care Trusts specified in the direction, or

(b)   

one or more Strategic Health Authorities so specified.

 
 

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Part 11 — Miscellaneous

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(5)   

Where the Secretary of State gives a direction under subsection (4), the

Secretary of State may give directions to the Board or (as the case may be) the

company about its exercise of the functions.

(6)   

For the purposes of this section and section 293

(a)   

an individual who holds employment in the civil service is to be treated

5

as employed by virtue of a contract of employment, and

(b)   

the terms of the individual’s employment in the civil service are to be

regarded as constituting the terms of the contract of employment.

(7)   

In this section and section 293 references to the transfer of property include

references to the grant of a lease.

10

(8)   

In this section and Schedules 23 and 24, “qualifying company” means a

company which is formed under section 223 of the National Health Service Act

2006 and wholly or partly owned by the Secretary of State.

(9)   

In section 293 and Schedules 23 and 24

“local authority” means—

15

(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;

(d)   

the Council of the Isles of Scilly;

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(e)   

the Common Council of the City of London;

“public authority” means any body or other person which has functions

conferred by or under an Act or by royal charter.

293     

Transfer schemes: supplemental

(1)   

The things that may be transferred under a property transfer scheme or a staff

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transfer scheme include—

(a)   

property, rights and liabilities that could not otherwise be transferred;

(b)   

property acquired, and rights and liabilities arising, after the making of

the scheme;

(c)   

criminal liabilities but only where the transfer is to a person mentioned

30

in subsection (2).

(2)   

Those persons are—

(a)   

the National Health Service Commissioning Board;

(b)   

a commissioning consortium;

(c)   

a local authority;

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(d)   

the Care Quality Commission;

(e)   

Monitor;

(f)   

the National Institute for Health and Care Excellence;

(g)   

the Health and Social Care Information Centre;

(h)   

the Health and Care Professions Council;

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(i)   

a public authority other than a Minister of the Crown.

(3)   

A property transfer scheme or a staff transfer scheme may make

supplementary, incidental, transitional and consequential provision and may

in particular—

 
 

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Part 12 — Final provisions

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(a)   

create rights, or impose liabilities, in relation to property or rights

transferred;

(b)   

make provision about the continuing effect of things done by the

transferor in respect of anything transferred;

(c)   

make provision about the continuation of things (including legal

5

proceedings) in the process of being done by, on behalf of or in relation

to the transferor in respect of anything transferred;

(d)   

make provision for references to the transferor in an instrument or

other document in respect of anything transferred to be treated as

references to the transferee.

10

(4)   

A property transfer scheme may make provision for the shared ownership or

use of property.

(5)   

A staff transfer scheme may make provision which is the same or similar to the

TUPE regulations.

(6)   

A property transfer scheme or a staff transfer scheme may provide—

15

(a)   

for the scheme to be modified by agreement after it comes into effect,

and

(b)   

for any such modifications to have effect from the date when the

original scheme comes into effect.

(7)   

Where a Primary Care Trust, a Strategic Health Authority or a Special Health

20

Authority is abolished by this Act, the Secretary of State must exercise the

powers conferred by section 292 and this section so as to secure that all the

body’s liabilities (other than criminal liabilities) are dealt with.

(8)   

In this section, “TUPE regulations” means the Transfer of Undertakings

(Protection of Employment) Regulations 2006 (SI 2006/246).

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Part 12

Final provisions

294     

Power to make consequential provision

(1)   

The Secretary of State may by order make provision in consequence of this Act.

(2)   

An order under this section may, in particular—

30

(a)   

amend, repeal, revoke or otherwise modify any enactment;

(b)   

include transitional, transitory or saving provision in connection with

the commencement of provision made by the order.

(3)   

Transitory provision by virtue of subsection (2)(b) may, in particular, modify

the application of provision made by the order pending the commencement

35

of—

(a)   

another provision of the order,

(b)   

a provision of this Act,

(c)   

any other enactment.

(4)   

Before making an order under this section that contains provision which

40

would, if included in an Act of the Scottish Parliament, fall within the

legislative competence of that Parliament, the Secretary of State must consult

the Scottish Ministers.

 
 

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Part 12 — Final provisions

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(5)   

The power conferred by this section is not restricted by any other provision of

this Act.

(6)   

In this section, “enactment” includes—

(a)   

an enactment contained in subordinate legislation (within the meaning

of the Interpretation Act 1978), and

5

(b)   

an enactment contained in, or in an instrument made under, an Act of

the Scottish Parliament, an Act or Measure of the National Assembly

for Wales or Northern Ireland legislation,

   

and references to an enactment include a reference to an enactment passed or

made after the passing of this Act.

10

295     

Regulations, orders and directions

(1)   

A power to make regulations under this Act is exercisable by the Secretary of

State.

(2)   

Regulations under this Act, and orders by the Secretary of State, the Welsh

Ministers or the Privy Council under this Act, must be made by statutory

15

instrument.

(3)   

Subject to subsections (4) to (6), a statutory instrument containing regulations

under this Act, or an order by the Secretary of State or the Privy Council under

this Act, is subject to annulment in pursuance of a resolution of either House of

Parliament.

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(4)   

Subsection (3) does not apply to an order under section 297 (commencement).

(5)   

A statutory instrument which contains (whether alone or with other provision)

any of the following may not be made unless a draft of the instrument has been

laid before, and approved by a resolution of, each House of Parliament—

(a)   

regulations under section 57 (extension of Monitor’s functions to adult

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social care services);

(b)   

regulations under section 102(7)(b) or (c) (percentage to be prescribed

in cases of objections to proposals to modify standard licence

conditions);

(c)   

regulations under section 106(4) (manner in which turnover to be

30

calculated for purposes of penalty for breach of licence conditions etc.);

(d)   

regulations under section 107(3)(d) (descriptions of action for

specifying in enforcement undertaking for breach of licence conditions

etc.);

(e)   

an order under section 112(10) (variation of period of designation for

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failing NHS foundation trust);

(f)   

regulations under section 118(2)(a), (b) or (c) (percentage to be

prescribed in cases of objections to proposals for national tariff);

(g)   

regulations under section 128 (health special administration

regulations);

40

(h)   

an order under section 138 (maximum amount that may be raised from

levy to raise funds for health special administration cases);

(i)   

regulations under section 140(2)(b) (percentage to be prescribed in

cases of objections to proposals to impose levy);

(j)   

an order under section 176(4) (variation of date on which NHS trusts

45

abolished);

 
 

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Part 12 — Final provisions

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(k)   

an order under section 283(4) (addition to list of bodies subject to duty

co-operate);

(l)   

an order under section 284(5) (order prohibiting bodies subject to duty

to co-operate from exercising specified functions etc.);

(m)   

an order under section 294 (consequential provision) which includes

5

provision that amends or repeals a provision of an Act of Parliament;

(n)   

regulations which, by virtue of subsection (8)(a), include provision that

amends or repeals a provision of an Act of Parliament.

(6)   

A statutory instrument containing an order by the Privy Council under this Act

that includes provision which would, if it were included in an Act of the

10

Scottish Parliament, be within the legislative competence of that Parliament is

subject to annulment in pursuance of a resolution of—

(a)   

either House of Parliament, or

(b)   

the Scottish Parliament.

(7)   

A power to make regulations under this Act, a power of the Secretary of State,

15

the Welsh Ministers or the Privy Council to make an order under this Act, and

a power to give directions under or by virtue of this Act—

(a)   

may be exercised either in relation to all cases to which the power

extends, or in relation to those cases subject to specified exceptions, or

in relation to any specified cases or descriptions of case,

20

(b)   

may be exercised so as to make, as respects the cases in relation to

which it is exercised—

(i)   

the full provision to which the power extends or any less

provision (whether by way of exception or otherwise),

(ii)   

the same provision for all cases in relation to which the power

25

is exercised, or different provision for different cases or

different descriptions of case, or different provision as respects

the same case or description of case for different purposes of

this Act,

(iii)   

any such provision either unconditionally or subject to any

30

specified condition, and

(c)   

may, in particular, make different provision for different areas.

(8)   

Any such power includes—

(a)   

power to make incidental, supplementary, consequential, saving or

transitional provision (including, in the case of a power to make

35

regulations, provision amending, repealing or revoking enactments),

and

(b)   

power to provide for a person to exercise a discretion in dealing with

any matter.

(9)   

A power to give directions under or by virtue of this Act includes power to

40

vary or revoke the directions by subsequent directions.

(10)   

A direction under this Act by a Minister of the Crown (acting alone) must be

given by regulations or an instrument in writing.

(11)   

A direction under or by virtue of this Act by any other person (or persons) must

be given by an instrument in writing.

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296     

Financial provision

There is to be paid out of money provided by Parliament—

 
 

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Part 12 — Final provisions

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(a)   

any expenditure incurred by virtue of this Act by the Secretary of State,

and

(b)   

any increase attributable to this Act in the sums payable under any

other Act out of money so provided.

297     

Commencement

5

(1)   

The following provisions come into force on the day on which this Act is

passed—

(a)   

section 216 (Health and Care Professions Council: power to make

arrangements with other health or social care regulators);

(b)   

section 218(3) (power of Secretary of State to make arrangements with

10

Health and Care Professions Council to discharge General Social Care

Council’s functions during period preceding abolition);

(c)   

the provisions of this Part;

(d)   

any other provision of this Act so far as is necessary for enabling the

exercise on or after the day on which this Act is passed of any power to

15

make an order or regulations or to give directions that is conferred by

the provision or an amendment made by it.

(2)   

Sections 176 and 177 (abolition of NHS trusts in England etc.) come into force

in accordance with section 176.

(3)   

Sections 30 to 32 come into force on such day as the appropriate authority may

20

by order appoint.

(4)   

In subsection (3) “the appropriate authority” means—

(a)   

in relation to England, the Secretary of State;

(b)   

in relation to Wales, the Welsh Ministers.

(5)   

The other provisions of this Act come into force on such day as the Secretary of

25

State may by order appoint.

(6)   

Different days may be appointed under subsection (3) or (5) for different

purposes (including different areas).

(7)   

An order under subsection (3) or (5) may include transitory provision; and

such provision may, in particular, modify the application of a provision of this

30

Act pending the commencement of—

(a)   

another provision of this Act, or

(b)   

any other enactment (within the meaning of section 294).

(8)   

Where a provision of this Act (or an amendment made by it) requires

consultation to take place, consultation undertaken before the commencement

35

of the provision is as effective for the purposes of that provision as consultation

undertaken after that commencement.

298     

Extent

(1)   

Subject to subsections (2) to (5), this Act extends to England and Wales only.

(2)   

Any amendment, repeal or revocation made by this Act has the same extent as

40

the enactment amended, repealed or revoked.

(3)   

The following provisions extend to England and Wales, Scotland and Northern

Ireland—

 
 

 
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