Health and Social Care Bill

Session 2010 - 11
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Health and Social Care Bill

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
81

66
Competition functions: supplementary
(1)
No objection may be taken to anything done by or in relation to Monitor under
the Competition Act 1998 or Part 4 of the Enterprise Act 2002 on the ground
that it should have been done by or in relation to the Office of Fair Trading.
(2)
Subject to subsection (3), sections 56 (general duties of Monitor) and 58
5
(matters to which Monitor must have regard) do not apply in relation to
anything done by Monitor in the carrying out of its functions by virtue of
section 64 or 65.
(3)
In the carrying out of any functions by virtue of section 64 or 65, Monitor may
nevertheless have regard to any of the matters in respect of which a duty is
10
imposed by section 56 or 58 if it is a matter to which the Office of Fair Trading
is entitled to have regard in the carrying out of those functions.
(4)
In section 9E of the Company Directors Disqualification Act 1986 (specified
regulators in cases of disqualification for competition infringements), in
subsection (2) after paragraph (e) insert “;
15
(f)
Monitor.”
(5)
In section 54 of the Competition Act 1998, in subsection (1) (definition of
“regulator” for the purposes of Part 1 of that Act)—
(a)
omit the “and” preceding paragraph (g), and
(b)
after that paragraph insert “; and
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(h)
Monitor.”
(6)
In section 136 of the Enterprise Act 2002 (investigations and reports on market
investigation references)—
(a)
in subsection (7) (meaning of “relevant sectoral enactment”), at the end
insert—
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“(i)
in relation to Monitor, section 65 of the Health and Social
Care Act 2011.”,
(b)
in subsection (8) (meaning of “relevant sectoral regulator”), for
“Communications or” substitute “Communications,”, and
(c)
in that subsection, after “Utility Regulation” insert “or Monitor”.
30
(7)
In section 168 of that Act (regulated markets)—
(a)
in subsection (3) (meaning of “relevant action”), after paragraph (n)
insert—
“(o)
modifying the conditions of a licence issued under
section 91 of the Health and Social Care Act 2011.”,
35
(b)
in subsection (4) (meaning of “relevant statutory functions”), after
paragraph (p) insert—
“(q)
in relation to any licence issued under section 91 of the
Health and Social Care Act 2011, the duties of Monitor
under sections 56 and 58 of that Act.”, and
40
(c)
in subsection (5) (meaning of “sectoral regulator”), after paragraph (i)
insert—
“(ia)
Monitor;”.
67
Requirements as to procurement, patient choice and competition
(1)
Regulations may impose requirements on the National Health Service
45
Commissioning Board and commissioning consortia for the purpose of

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
82

securing that, in commissioning health care services for the purposes of the
NHS, they—
(a)
adhere to good practice in relation to procurement;
(b)
protect and promote the right of patients to make choices with respect
to treatment or other health care services provided for the purposes of
5
the NHS;
(c)
do not act in a manner that would (or would be likely to) prevent,
restrict or distort competition in the provision of health care services for
those purposes.
(2)
Requirements imposed by regulations under this section apply to an
10
arrangement for the provision of goods and services only if the value of the
consideration attributable to the services is greater than that attributable to the
goods.
(3)
Regulations under this section may, in particular, impose requirements
relating to—
15
(a)
competitive tendering for the provision of services;
(b)
the management of conflicts between the interests involved in
commissioning services and the interests involved in providing them.
(4)
The regulations may provide for the requirements imposed, or such of them as
are prescribed, not to apply in relation to arrangements of a prescribed
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description.
68
Requirements under section 67: investigations, declarations and directions
(1)
Regulations under section 67 may confer on Monitor—
(a)
a power to investigate a complaint that the National Health Service
Commissioning Board or a commissioning consortium has failed to
25
comply with a requirement imposed by the regulations;
(b)
a power to investigate on its own initiative whether the National Health
Service Commissioning Board or a commissioning consortium has
failed to comply with a requirement imposed by virtue of section
67(1)(c);
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(c)
a power to require the Board or a commissioning consortium to provide
it with such information as Monitor may specify for the purposes of an
investigation it carries out by virtue of paragraph (a) or (b);
(d)
a power to require the Board or a commissioning consortium to provide
an explanation of such information as it provides by virtue of
35
paragraph (c).
(2)
A power conferred by virtue of subsection (1)(a) is exercisable only where
Monitor considers that the person making the complaint has sufficient interest
in the arrangement to which the complaint relates.
(3)
Regulations under section 67 may confer on Monitor a power to declare that an
40
arrangement for the provision of health care services for the purposes of the
NHS is ineffective.
(4)
The power conferred by virtue of subsection (3) is exercisable only in
prescribed circumstances and subject to prescribed restrictions and only where
Monitor is satisfied that—
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
83

(a)
the National Health Service Commissioning Board or a commissioning
consortium has failed to comply with a requirement of regulations
under section 67, and
(b)
the failure is sufficiently serious.
(5)
On a declaration being made by virtue of subsection (3)(a), the arrangement is
5
void; but that does not affect—
(a)
the validity of anything done pursuant to the arrangement,
(b)
any right acquired or liability incurred under the arrangement, or
(c)
any proceedings or remedy in respect of such a right or liability.
(6)
Regulations under section 67 may confer on Monitor a power to direct the
10
National Health Service Commissioning Board or a commissioning
consortium—
(a)
to put in place measures for the purpose of preventing failures to
comply with requirements imposed by the regulations or mitigating
the effect of such failures;
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(b)
to remedy a failure to comply with such a requirement;
(c)
not to exercise in a prescribed manner prescribed functions in relation
to arrangements for the provision of health care services;
(d)
to vary or withdraw an invitation to tender for the provision of health
care services;
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(e)
to vary an arrangement for the provision of health care services made
in consequence of putting the provision of the services out to tender.
(7)
A failure to comply with a requirement imposed by regulations under section
67 which causes loss or damage is actionable, except in so far as the regulations
restrict the right to bring such an action.
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(8)
Regulations under section 67 may—
(a)
provide for a specified defence to such an action;
(b)
prevent a person who has brought such an action under the Public
Contracts Regulations 2006 (S.I. 2006/5) from bringing such an action
under the regulations under section 67 in respect of the whole or part
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of the same loss or damage.
69
Requirements under section 67: undertakings
(1)
Regulations under section 67 may confer on Monitor a power to accept an
undertaking (referred to in this Chapter as a “section 69 undertaking”) from the
National Health Service Commissioning Board or a commissioning
35
consortium to take such action of a kind mentioned in subsection (2) as is
specified in the undertaking within such period as is so specified.
(2)
The specified action must be—
(a)
action of a description given in paragraphs (a) to (e) of section 68(6), or
(b)
action of such a description as may be prescribed.
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(3)
Where Monitor accepts a section 69 undertaking then, unless the Board, or (as
the case may be) the consortium from whom the undertaking is accepted, has
failed to comply with the undertaking or any part of it, Monitor may not—
(a)
continue to carry out the investigation in question,
(b)
make a declaration by virtue of subsection (3) of section 68 in relation
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to the arrangement in question, or

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Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
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(c)
give a direction by virtue of subsection (6) of that section in relation to
the failure in question.
(4)
Where the Board, or (as the case may be) the consortium from whom Monitor
has accepted a section 69 undertaking, has failed to comply fully with the
undertaking but has complied with part of it, Monitor must take the partial
5
compliance into account in deciding whether to do something mentioned in
paragraphs (a) to (c) of subsection (3).
(5)
Schedule 9 (which makes further provision about section 69 undertakings) has
effect.
70
Guidance
10
(1)
Monitor must publish guidance about—
(a)
compliance with requirements imposed by regulations under section
67;
(b)
how it intends to exercise powers conferred on it by regulations under
that section.
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(2)
Before publishing guidance under subsection (1)(a), Monitor must consult—
(a)
the National Health Service Commissioning Board, and
(b)
such other persons as Monitor considers appropriate.
(3)
Before publishing guidance under subsection (1)(a) or (b), Monitor must obtain
the approval of the Secretary of State.
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(4)
Monitor may revise guidance under this section and, if it does so, must publish
the guidance as revised.
71
Mergers involving NHS foundation trusts
(1)
Part 3 of the Enterprise Act 2002 (mergers) applies (in so far as it would not
otherwise) to each of the following cases as it applies to a case where two or
25
more enterprises have ceased to be distinct enterprises.
(2)
The first case is where the activities of two or more NHS foundation trusts have
ceased to be distinct activities.
(3)
The second case is where the activities of one or more NHS foundation trusts
and the activities of one or more businesses have ceased to be distinct activities.
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(4)
In subsections (2) and (3), a reference to the activities of an NHS foundation
trust or a business includes a reference to part of its activities.
(5)
In this section, “enterprise” and “business” each have the same meaning as in
Part 3 of the Enterprise Act 2002.
72
Reviews by the Competition Commission
35
(1)
The Competition Commission must review—
(a)
the development of competition in the provision of health care services
for the purposes of the NHS, and
(b)
the exercise by Monitor of its functions under this Part in relation to the
provision of health care services for those purposes.
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
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(2)
Before beginning a review under this section, the Commission must publish a
notice specifying the matters it proposes to consider in the review.
(3)
In carrying out the review, the Commission must consider whether those
matters have or may be expected to have any effects adverse to the public
interest.
5
(4)
The Commission must complete the review, and publish a report of it, before
the end of the period of 12 months beginning with the day on which the notice
relating to the review was published under subsection (2).
(5)
The Commission must send a copy of the report to—
(a)
the Secretary of State,
10
(b)
Monitor, and
(c)
the National Health Service Commissioning Board.
(6)
Where the Commission concludes that one or more of the matters it considered
in the review has or may be expected to have effects adverse to the public
interest, it must include in the report its recommendations to the Secretary of
15
State, Monitor and the National Health Service Commissioning Board as to
how to remedy those effects.
(7)
Each of those persons must reply to the Commission to say what the person
proposes to do in the light of the recommendations; the reply must be made
before the end of the period of six months beginning with the day on which the
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report was published.
(8)
Where the Commission is carrying out a review under this section, Monitor
must give the Commission—
(a)
such information in Monitor’s possession as the Commission may
require to enable it to carry out the review,
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(b)
such other information in Monitor’s possession as it considers would
assist the Commission in carrying out the review, and
(c)
such other assistance as the Commission may require to assist it in
carrying out the review.
(9)
The first review under this section must begin before the end of 2019.
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(10)
A subsequent review under this section must begin before the end of the
period of seven years beginning with the date on which the Commission
published the report of the previous review under this section.
(11)
For the purposes of the law of defamation, absolute privilege attaches to a
report under this section.
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(12)
In paragraph 19A of Schedule 7 to the Competition Act 1998 (duty of Chairman
to make rules of procedure), in the definition of “special reference group” in
sub-paragraph (9)—
(a)
after “an investigation” insert “or (in the case of the Health and Social
Care Act 2011) a review”,
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(b)
omit the “or” preceding paragraph (p), and
(c)
after that paragraph insert “; or
(q)
section 72 of the Health and Social Care Act 2011.”