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

58

 

Functions relating to mental health matters

33      

Approval functions

(1)   

After section 12 of the Mental Health Act 1983 insert—

“12ZA   

Agreement for exercise of approval function: England

(1)   

The Secretary of State may enter into an agreement with another person

5

for an approval function of the Secretary of State to be exercisable by

the Secretary of State concurrently—

(a)   

with that other person, and

(b)   

if a requirement under section 12ZB has effect, with the other

person by whom the function is exercisable under that

10

requirement.

(2)   

In this section and sections 12ZB and 12ZC, “approval function”

means—

(a)   

the function under section 12(2), or

(b)   

the function of approving persons as approved clinicians.

15

(3)   

An agreement under this section may, in particular, provide for an

approval function to be exercisable by the other party—

(a)   

in all circumstances or only in specified circumstances;

(b)   

in all areas or only in specified areas.

(4)   

An agreement under this section may provide for an approval function

20

to be exercisable by the other party—

(a)   

for a period specified in the agreement, or

(b)   

for a period determined in accordance with the agreement.

(5)   

The other party to an agreement under this section must comply with

such instructions as the Secretary of State may give with respect to the

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exercise of the approval function.

(6)   

An instruction under subsection (5) may require the other party to

cease to exercise the function to such extent as the instruction specifies.

(7)   

The agreement may provide for the Secretary of State to pay

compensation to the other party in the event of an instruction such as is

30

mentioned in subsection (6) being given.

(8)   

An instruction under subsection (5) may be given in such form as the

Secretary of State may determine.

(9)   

The Secretary of State must publish instructions under subsection (5) in

such form as the Secretary of State may determine; but that does not

35

apply to an instruction such as is mentioned in subsection (6).

(10)   

An agreement under this section may provide for the Secretary of State

to make payments to the other party; and the Secretary of State may

make payments to other persons in connection with the exercise of an

approval function by virtue of this section.

40

12ZB    

Requirement to exercise approval functions: England

(1)   

The Secretary of State may impose a requirement on the National

Health Service Commissioning Board (“the Board”) or a Special Health

 
 

Health and Social Care Bill
Part 1 — The health service in England

59

 

Authority for an approval function of the Secretary of State to be

exercisable by the Secretary of State concurrently—

(a)   

with the Board or (as the case may be) Special Health Authority,

and

(b)   

if an agreement under section 12ZA has effect, with the other

5

person by whom the function is exercisable under that

agreement.

(2)   

The Secretary of State may, in particular, require the body concerned to

exercise an approval function—

(a)   

in all circumstances or only in specified circumstances;

10

(b)   

in all areas or only in specified areas.

(3)   

The Secretary of State may require the body concerned to exercise an

approval function—

(a)   

for a period specified in the requirement, or

(b)   

for a period determined in accordance with the requirement.

15

(4)   

Where a requirement under subsection (1) is imposed, the Board or (as

the case may be) Special Health Authority must comply with such

instructions as the Secretary of State may give with respect to the

exercise of the approval function.

(5)   

An instruction under subsection (4) may be given in such form as the

20

Secretary of State may determine.

(6)   

The Secretary of State must publish instructions under subsection (4) in

such form as the Secretary of State may determine.

(7)   

Where the Board or a Special Health Authority has an approval

function by virtue of this section, the function is to be treated for the

25

purposes of the National Health Service Act 2006 as a function that it

has under that Act.

(8)   

The Secretary of State may make payments in connection with the

exercise of an approval function by virtue of this section.

12ZC    

Provision of information for the purposes of section 12ZA or 12ZB

30

(1)   

A relevant person may provide another person with such information

as the relevant person considers necessary or appropriate for or in

connection with—

(a)   

the exercise of an approval function; or

(b)   

the exercise by the Secretary of State of the power—

35

(i)   

to enter into an agreement under section 12ZA;

(ii)   

to impose a requirement under section 12ZB; or

(iii)   

to give an instruction under section 12ZA(5) or 12ZB(4).

(2)   

The relevant persons are—

(a)   

the Secretary of State;

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(b)   

a person who is a party to an agreement under section 12ZA; or

(c)   

if the Secretary of State imposes a requirement under section

12ZB on the National Health Service Commissioning Board or a

Special Health Authority, the Board or (as the case may be)

Special Health Authority.

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Health and Social Care Bill
Part 1 — The health service in England

60

 

(3)   

This section, in so far as it authorises the provision of information by

one relevant person to another relevant person, has effect

notwithstanding any rule of common law which would otherwise

prohibit or restrict the provision.

(4)   

In this section, “information” includes documents and records.”

5

(2)   

In section 54(1) of that Act (requirement for certain medical evidence etc. to be

from practitioner approved under section 12 of the Act), after “the Secretary of

State” insert “, or by another person by virtue of section 12ZA or 12ZB above,”.

(3)   

In section 139(4) of that Act (protection for acts done in pursuance of the Act:

exceptions), at the end insert “or against a person who has functions under this

10

Act by virtue of section 12ZA in so far as the proceedings relate to the exercise

of those functions”.

(4)   

In section 145(1) of that Act (interpretation), in the definition of “approved

clinician”, after “the Secretary of State” insert “or another person by virtue of

section 12ZA or 12ZB above”.

15

(5)   

In each of the following provisions, after “the Secretary of State” insert “, or by

another person by virtue of section 12ZA or 12ZB of that Act,”—

(a)   

in section 8(2) of the Criminal Procedure (Insanity) Act 1964

(interpretation), in the definition of “duly approved”,

(b)   

in section 51(1) of the Criminal Appeal Act 1968 (interpretation), in the

20

definition of “duly approved”,

(c)   

in section 6(1) of the Criminal Procedure (Insanity and Unfitness to

Plead) Act 1991 (interpretation), in the definition of “duly approved”,

(d)   

in section 157(6) of the Criminal Justice Act 2003 (mentally disordered

offenders: definition of “medical report”),

25

(e)   

in section 172(1) of the Armed Forces Act 2006 (fitness to stand trial etc:

definition of “duly approved”), and

(f)   

in section 258(5) of that Act (mentally disordered offenders), in the

definition of “medical report”.

34      

Discharge of patients

30

(1)   

In section 23 of the Mental Health Act 1983 (discharge of patients), omit

subsections (3) and (3A).

(2)   

In section 24 of that Act (visiting and examination of patients), omit subsections

(3) and (4).

(3)   

In Schedule 1 to that Act (application of certain provisions of that Act to

35

patients subject to hospital and guardianship orders)—

(a)   

in Part 1, in paragraph 1, omit “24(3) and (4),”, and

(b)   

in Part 2, in paragraph 1, omit “24(3) and (4),”.

(4)   

In consequence of the repeals made by this section—

(a)   

in the National Health Service and Community Care Act 1990, in

40

Schedule 9—

(i)   

omit paragraph 24(3)(a) and the “and” following it, and

(ii)   

omit paragraph 24(4),

(b)   

in the Health Authorities Act 1995, in Schedule 1, omit paragraph

107(2)(a) and (3),

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Health and Social Care Bill
Part 1 — The health service in England

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(c)   

in the Care Standards Act 2000, in Schedule 4, omit paragraph 9(3),

(d)   

in the Health and Social Care (Community Health and Standards) Act

2003, in Schedule 4, omit paragraphs 53(a) and 54,

(e)   

in the Domestic Violence, Crime and Victims Act 2004—

(i)   

omit sections 37A(5), 38A(3), 43A(5) and 44A(3),

5

(ii)   

in section 37A(7)(a), omit “, (5)”, and

(iii)   

in section 43A(7), omit “, (5)”, and

(f)   

in the Mental Health Act 2007, in Schedule 3, omit paragraphs 10(5) and

(6) and 11(3) and (4).

35      

After-care

10

(1)   

Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.

(2)   

In subsection (2)—

(a)   

after “duty of the” insert “commissioning consortium or”,

(b)   

omit “Primary Care Trust or” in each place it appears,

(c)   

for “and of the local social services authority” substitute “, and it shall

15

be the duty of the local social services authority,”,

(d)   

for “such time as the” substitute “such time as (in relation to England)

the commissioning consortium or”,

(e)   

before “Local Health Board and the” insert “local social services

authority is satisfied that the person concerned is no longer in need of

20

such services or (in relation to Wales) the”,

(f)   

for “are satisfied that the person concerned is no longer in need of such

services” substitute “are so satisfied”, and

(g)   

for “they” substitute “it (in relation to England) or they (in relation to

Wales)”.

25

(3)   

In subsection (2C)—

(a)   

in paragraph (a), omit “or section 12A(4) of the National Health Service

Act 2006”, and

(b)   

after paragraph (b) insert “;

   

but see also subsection (2F)(b).”

30

(4)   

After subsection (2C) insert—

“(2D)   

Subsection (2) above, in its application to the commissioning

consortium, has effect as if—

(a)   

for “to provide” there were substituted “to arrange for the

provision of”; and

35

(b)   

the words “, in co-operation with relevant voluntary agencies,”

were omitted.

(2E)   

The duty imposed on the commissioning consortium by subsection (2)

above applies only to services for the provision of which the

consortium has—

40

(a)   

a duty to arrange under section 3 of the National Health Service

Act 2006; or

(b)   

a power to arrange under section 3A of that Act.

(2F)   

The duty imposed on the commissioning consortium by subsection (2)

above is to be regarded for all purposes as a duty imposed on it by

45

section 3 of that Act; and accordingly—

 
 

Health and Social Care Bill
Part 1 — The health service in England

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(a)   

references in any provision made by or under any Act to the

provision of services under that section or that Act are to be

read as including a reference to the provision of services under

this section; and

(b)   

references in any provision made by or under this or any other

5

Act to the provision of services under this section are to be read

in the light of this subsection.

(2G)   

The Secretary of State may by regulations provide that the duty

imposed on the commissioning consortium by subsection (2) above is,

in the circumstances or to the extent prescribed by the regulations, to be

10

imposed instead on another commissioning consortium or the National

Health Service Commissioning Board.

(2H)   

Where regulations under subsection (2G) above provide that the duty

imposed by subsection (2) above is to be imposed on the National

Health Service Commissioning Board, subsections (2D) to (2F) above

15

have effect as if—

(a)   

references to the commissioning consortium were references to

the National Health Service Commissioning Board; and

(b)   

subsection (2E) above were omitted.

(2I)   

Section 272(7) and (8) of the National Health Service Act 2006 applies to

20

the power to make regulations under subsection (2G) above as it

applies to a power to make regulations under that Act.”

(5)   

In subsection (3)—

(a)   

after “section “the” insert “commissioning consortium or”,

(b)   

omit “Primary Care Trust or” in each place it appears, and

25

(c)   

after “means the”, in the first place it appears, insert “commissioning

consortium or”.

(6)   

In consequence of the repeals made by subsections (2)(b) and (5)(b), omit

paragraph 47 of Schedule 2 to the National Health Service Reform and Health

Care Professions Act 2002.

30

36      

Provision of pocket money for in-patients

(1)   

Section 122 of the Mental Health Act 1983 (provision of pocket money for in-

patients) is amended as follows.

(2)   

In subsection (1)—

(a)   

for “Secretary of State may” substitute “Welsh Ministers may (in

35

relation to Wales)”,

(b)   

for “he thinks fit” substitute “the Welsh Ministers think fit”,

(c)   

for “their” substitute “those persons’”,

(d)   

for “him” substitute “the Welsh Ministers”, and

(e)   

for “they” substitute “those persons”.

40

(3)   

In subsection (2)—

(a)   

omit “the National Health Service Act 2006 and”, and

(b)   

for “either of those Acts” substitute “that Act”.

(4)   

In section 146 of that Act (application to Scotland), omit “122,”.

 
 

 
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