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 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
5
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
15
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.
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
64B or 64E above; but
(b)
before the completion of the treatment, the patient loses
30
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The patient shall be treated as having withdrawn his consent and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.
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.”
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(5)
In section 64H (certificates: supplementary provision)—

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Part 11 — Miscellaneous
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(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”.
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.”
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.
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.

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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;
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
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;
35
(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;
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
in particular—

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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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(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.
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
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
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
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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(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.
45
296
Financial provision
There is to be paid out of money provided by Parliament—

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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—