Health and Social Care Bill

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 1 — The health service in England
63

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Transfers to and from special hospitals
(1)
Omit section 123 of the Mental Health Act 1983 (transfers to and from special
hospitals).
(2)
In section 68A of that Act (power to reduce periods after which cases must be
referred to tribunal), in subsection (4)—
5
(a)
after paragraph (c), insert “or”,
(b)
omit the “or” following paragraph (d), and
(c)
omit paragraph (e).
(3)
In section 138 of that Act (retaking of patients escaping from custody), in
subsection (4)(a), omit “or under section 123 above”.
10
(4)
In consequence of the repeal made by subsection (1), omit paragraph 67 of
Schedule 4 to the Health Act 1999.
(5)
This section does not affect—
(a)
the authority for the detention of a person who is liable to be detained
under the Mental Health Act 1983 before the commencement of this
15
section,
(b)
that Act in relation to any application, order or direction for admission
or removal to a hospital made under that Act before that
commencement, or
(c)
the authority for the retaking of a person who, before that
20
commencement, escapes while being taken to or from a hospital as
mentioned in section 138(4)(a) of that Act.
38
Independent mental health advocates
(1)
In section 130A of the Mental Health Act 1983 (independent mental health
advocates: England), in subsection (1)—
25
(a)
for “The Secretary of State” substitute “A local social services authority
whose area is in England”, and
(b)
at the end insert “for whom the authority is responsible for the
purposes of this section”.
(2)
In subsection (4) of that section, for “the Secretary of State” substitute “a local
30
social services authority”.
(3)
In section 130C of that Act (provision supplementary to section 130A), after
subsection (4) insert—
“(4A)
A local social services authority is responsible for a qualifying patient
if—
35
(a)
in the case of a qualifying patient falling within subsection (2)(a)
above, the hospital or registered establishment in which he is
liable to be detained is situated in that authority’s area;
(b)
in the case of a qualifying patient falling within subsection (2)(b)
above, that authority is the responsible local social services
40
authority within the meaning of section 34(3) above;
(c)
in the case of a qualifying patient falling within subsection
(2)(c), the responsible hospital is situated in that authority’s
area;
(d)
in the case of a qualifying patient falling within subsection (3)—
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Health and Social Care Bill
Part 1 — The health service in England
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(i)
in a case where the patient has capacity or is competent
to do so, he nominates that authority as responsible for
him for the purposes of section 130A above, or
(ii)
in any other case, a donee or deputy or the Court of
Protection, or a person engaged in caring for the patient
5
or interested in his welfare, nominates that authority on
his behalf as responsible for him for the purposes of that
section.
(4B)
In subsection (4A)(d) above—
(a)
the reference to a patient who has capacity is to be read in
10
accordance with the Mental Capacity Act 2005;
(b)
the reference to a donee is to a donee of a lasting power of
attorney (within the meaning of section 9 of that Act) created by
the patient, where the donee is acting within the scope of his
authority and in accordance with that Act;
15
(c)
the reference to a deputy is to a deputy appointed for the patient
by the Court of Protection under section 16 of that Act, where
the deputy is acting within the scope of his authority and in
accordance with that Act.”
(4)
In Schedule 1 to the Local Authority Social Services Act 1970 (social services
20
functions), in the entry for the Mental Health Act 1983, at the appropriate place
insert—

“Section 130A
Making arrangements to enable

independent mental health

advocates to be available to help

25

qualifying patients”.

39
Patients’ correspondence
(1)
In section 134 of the Mental Health Act 1983 (patients’ correspondence), in
subsection (1)—
(a)
before “the approved clinician” insert “or”, and
30
(b)
omit “or the Secretary of State”.
(2)
Subsection (1) of this section does not affect the validity of any requests made
to the Secretary of State under section 134(1) of that Act and having effect
immediately before the commencement of this section.
40
Notification of hospitals having arrangements for special cases
35
(1)
In section 140 of the Mental Health Act 1983 (notification of hospitals having
arrangements for special cases)—
(a)
after “the duty of” insert “every commissioning consortium and of”,
(b)
omit “every Primary Care Trust and of”,
(c)
after “the area of the” insert “commissioning consortium or”,
40
(d)
omit “Primary Care Trust or” in the first place it appears,
(e)
after “available to the” insert “commissioning consortium or”, and
(f)
omit “Primary Care Trust or” in the second place it appears.

Health and Social Care Bill
Part 1 — The health service in England
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(2)
In consequence of the repeals made by this section, in the National Health
Service Reform and Health Care Professions Act 2002, in Schedule 2, omit
paragraph 48(a) and (c).
Emergency powers
41
Role of the Board and consortia in respect of emergencies
5
For the cross-heading preceding section 253 of the National Health Service Act
2006 substitute “Emergencies: role of the Secretary of State, the Board and
consortia” and after the cross-heading insert—
“252A
Role of the Board and consortia in respect of emergencies
(1)
The Board and each commissioning consortium must take appropriate
10
steps for securing that it is properly prepared for dealing with a
relevant emergency.
(2)
The Board must take such steps as it considers appropriate for securing
that each commissioning consortium is properly prepared for dealing
with a relevant emergency.
15
(3)
The steps taken by the Board under subsection (2) must include
monitoring compliance by each commissioning consortium with its
duty under subsection (1).
(4)
The Board must take such steps as it considers appropriate for securing
that each relevant service provider is properly prepared for dealing
20
with a relevant emergency.
(5)
The steps taken by the Board under subsection (4) must include
monitoring compliance by the service provider with any requirements
imposed on it by its service arrangements for the purpose of securing
that it is properly prepared for dealing with a relevant emergency.
25
(6)
The Board may take such steps as it considers appropriate for
facilitating a co-ordinated response to an emergency by the
commissioning consortia and relevant service providers for which it is
a relevant emergency.
(7)
The Board may arrange for any body or person to exercise any
30
functions of the Board under subsections (2) to (6).
(8)
A relevant service provider must appoint an individual to be
responsible for—
(a)
securing that the provider is properly prepared for dealing with
a relevant emergency,
35
(b)
securing that the provider complies with any requirements
mentioned in subsection (5), and
(c)
providing the Board with such information as it may require for
the purpose of discharging its functions under this section.
(9)
In this section—
40
“relevant emergency”, in relation to the Board or a commissioning
consortium, means any emergency which might affect the
Board or the consortium (whether by increasing the need for the
services that it may arrange or in any other way);

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“relevant emergency”, in relation to a relevant service provider,
means any emergency which might affect the provider
(whether by increasing the need for the services that it may
provide or in any other way);
“relevant service provider” means any body or person providing
5
services in pursuance of service arrangements;
“service arrangements”, in relation to a relevant service provider,
means arrangements made by the Board or a commissioning
consortium under section 3, 3A, 3B or 4 or Schedule 1.”

10
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Secretary of State’s emergency powers
(1)
Section 253 of the National Health Service Act 2006 (emergency powers) is
amended as follows.
(2)
In subsection (1) for the words from “it is necessary” to the end of the
subsection substitute “it is appropriate to do so”.
15
(3)
After subsection (1) insert—
“(1A)
A direction under this section may be given to—
(a)
an NHS body other than a Local Health Board;
(b)
the National Institute for Health and Care Excellence;
(c)
the Health and Social Care Information Centre;
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(d)
any body or person providing services in pursuance of
arrangements made in the exercise of the functions of the Board
or commissioning consortia under section 3, 3A, 3B or 4 or
Schedule 1, other than an NHS body.”
(4)
For subsection (2) substitute—
25
“(2)
In relation to a body within subsection (1A)(a) to (c), the powers
conferred by this section may be exercised—
(a)
to give directions to the body about the exercise of any of its
functions;
(b)
to direct the body to cease to exercise any of its functions for a
30
specified period;
(c)
to direct the body to exercise any of its functions concurrently
with another body or person for a specified period;
(d)
to direct the body to exercise any function conferred on another
body or person under or by virtue of this Act for a specified
35
period (whether to the exclusion of, or concurrently with, that
body or person).
(2A)
In relation to a body or person within subsection (1A)(d), the powers
conferred by this section may be exercised—
(a)
to give directions to the body or person about the provision of
40
any services that it provides in pursuance of arrangements
mentioned in subsection (1A)(d);
(b)
to direct the body or person to cease to provide any of those
services for a specified period;
(c)
to direct the body or person to provide other services for the
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purposes of the health service for a specified period.”

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(5)
After subsection (2A) insert—
“(2B)
The Secretary of State may direct the Board to exercise the functions of
the Secretary of State under this section.
(2C)
The Secretary of State may give directions to the Board about its
exercise of any functions that are the subject of a direction under
5
subsection (2B).
(2D)
In this section, “specified” means specified in the direction.”
(6)
Omit subsection (4) (exclusion of NHS foundation trusts from application of
emergency powers).
(7)
In section 273 of that Act (further provision about orders and directions under
10
the Act), in subsection (4)(c)(ii), for “or 120” substitute “, 120 or 253”.
Miscellaneous
43
New Special Health Authorities
(1)
After section 28 of the National Health Service Act 2006 (special health
authorities) insert—
15
“28A
Special Health Authorities: further provision
(1)
This section applies in relation to an order under section 28 which is
made after the coming into force of section 43 of the Health and Social
Care Act 2011.
(2)
The order must include—
20
(a)
provision for the abolition of the Special Health Authority on a
day specified in the order, and
(b)
provision as to the transfer of officers, property and liabilities of
the Authority on its abolition.
(3)
The day specified in accordance with subsection (2)(a) must be within
25
the period of 3 years beginning with the day on which the Special
Health Authority is established.
(4)
The power (by virtue of section 273(1)) to vary an order under section
28 includes power to vary the provision mentioned in subsection (2)
by—
30
(a)
providing for the abolition of the Special Health Authority on a
day which is earlier or later than the day for the time being
specified in the order;
(b)
making different provision as to the matters mentioned in
subsection (2)(b).
35
(5)
If an order is varied to provide for the abolition of the Special Health
Authority on a later day, that day must be within the period of 3 years
beginning with the day on which the Special Health Authority would
(but for the variation) have been abolished.”
(2)
In section 272 of that Act (orders, regulations, rules and directions), in
40
subsection (6), after paragraph (zb) insert—
“(zc)
an order under section 28 which varies such an order as
mentioned in section 28A(5),”.