|
| |
|
| |
“(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 |
| 5 |
| |
(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 |
| 15 |
reference to subsection (6)(a) of this section, and |
| |
(c) | the reference to capacity to consent were a reference to |
| |
| |
(4) | After section 64F insert— |
| |
“64FA | Withdrawal of consent |
| 20 |
(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. |
| 25 |
(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 |
| |
| |
(b) | before the completion of the treatment, the patient loses |
| 30 |
capacity or (as the case may be) competence to consent to the |
| |
| |
(3) | The patient shall be treated as having withdrawn his consent and |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. |
| 35 |
(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.” |
| 45 |
(5) | In section 64H (certificates: supplementary provision)— |
| |
|
| |
|
| |
|
(a) | in subsection (2), at the end insert “; and the regulations may make |
| |
different provision for the different descriptions of Part 4A certificate”, |
| |
| |
(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 |
| |
| 15 |
(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.” |
| |
| |
| 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 |
| |
| 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. |
| 35 |
(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 |
| 40 |
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. |
| |
|
| |
|
| |
|
(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— |
| |
| 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; |
| 20 |
(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 |
| 25 |
| |
(a) | property, rights and liabilities that could not otherwise be transferred; |
| |
(b) | property acquired, and rights and liabilities arising, after the making of |
| |
| |
(c) | criminal liabilities but only where the transfer is to a person mentioned |
| 30 |
| |
| |
(a) | the National Health Service Commissioning Board; |
| |
(b) | a commissioning consortium; |
| |
| 35 |
(d) | the Care Quality Commission; |
| |
| |
(f) | the National Institute for Health and Care Excellence; |
| |
(g) | the Health and Social Care Information Centre; |
| |
(h) | the Health and Care Professions Council; |
| 40 |
(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 |
| |
| |
|
| |
|
| |
|
(a) | create rights, or impose liabilities, in relation to property or rights |
| |
| |
(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 |
| |
| |
(5) | A staff transfer scheme may make provision which is the same or similar to the |
| |
| |
(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, |
| |
| |
(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). |
| 25 |
| |
| |
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 |
| |
(a) | another provision of the order, |
| |
(b) | a provision of this Act, |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
(5) | The power conferred by this section is not restricted by any other provision of |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
| |
| 20 |
(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 |
| 25 |
| |
(b) | regulations under section 102(7)(b) or (c) (percentage to be prescribed |
| |
in cases of objections to proposals to modify standard licence |
| |
| |
(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 |
| |
| |
(e) | an order under section 112(10) (variation of period of designation for |
| 35 |
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 |
| |
| 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 |
| |
|
| |
|
| |
|
(k) | an order under section 283(4) (addition to list of bodies subject to duty |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(iii) | any such provision either unconditionally or subject to any |
| 30 |
| |
(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), |
| |
| |
(b) | power to provide for a person to exercise a discretion in dealing with |
| |
| |
(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. |
| 45 |
| |
There is to be paid out of money provided by Parliament— |
| |
|
| |
|
| |
|
(a) | any expenditure incurred by virtue of this Act by the Secretary of State, |
| |
| |
(b) | any increase attributable to this Act in the sums payable under any |
| |
other Act out of money so provided. |
| |
| 5 |
(1) | The following provisions come into force on the day on which this Act is |
| |
| |
(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 |
| |
(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. |
| |
| |
(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 |
| |
| |
|
| |
|