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 3 — Economic regulation of health and adult social care services
Chapter 2 — Competition
86

73
Reviews under section 72: powers of investigation
(1)
The following provisions of Part 3 of the Enterprise Act 2002 apply, with the
modifications in subsections (2) to (8), for the purposes of the exercise by the
Competition Commission of its function under section 72(3) as they apply for
the purposes of investigations on references under that Part—
5
(a)
section 109 (attendance of witnesses and production of documents),
(b)
section 110 (enforcement of powers under section 109: general),
(c)
section 111 (penalties),
(d)
section 112 (penalties: main procedural requirements),
(e)
section 113 (payments and interest by instalments),
10
(f)
section 114 (appeals in relation to penalties),
(g)
section 115 (recovery of penalties),
(h)
section 116 (statement of policy),
(i)
section 117 (offence of supplying false or misleading information), and
(j)
section 125 (offences by bodies corporate) so far as relating to section
15
117.
(2)
Section 110 has effect as if—
(a)
subsection (2) were omitted,
(b)
in subsection (4), for “the report of the Commission on the reference
concerned” there were substituted “the report of the Commission on
20
the review concerned”,
(c)
for subsections (5) to (8) there were substituted—
“(5)
Where the Commission considers that a person has
intentionally altered, suppressed or destroyed a document
which he has been required to produce under section 109, it
25
may impose a penalty in accordance with section 111.”, and
(d)
in subsection (9), for the words from “or (3)” to “section 65(3))” there
were substituted “, (3) or (5)”.
(3)
Section 111 has effect as if—
(a)
in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and
30
(b)
in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.
(4)
Section 111(5)(b)(ii) has effect as if—
(a)
for “the reference concerned” there were substituted “the review
concerned”,
(b)
the words “(or, in the case of a report under section 50 or 65, given)”
35
were omitted,
(c)
the words “(or given)”, in each place they appear, were omitted, and
(d)
the words “by this Part” were omitted.
(5)
Section 112 has effect as if, in subsection (1), for “or (3)” there were substituted
“, (3) or (5)”.
40
(6)
Section 114 has effect as if, in subsection (1), for “or (3)” there were substituted
“, (3) or (5)”.
(7)
Section 115 has effect as if for “or (3)” there were substituted “, (3) or (5)”.
(8)
Section 116 has effect as if, in subsection (2), for “or (3)” there were substituted
“, (3) or (5)”.
45

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
87

(9)
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
purposes of sections 109 to 116 of that Act (including, in particular, provisions
relating to the making of orders) have effect for the purposes of the application
of those sections by virtue of subsection (1) in relation to those sections as
applied by virtue of that subsection.
5
(10)
Accordingly, corresponding provisions of this Act do not have effect in relation
to those sections as applied by virtue of this section.
74
Reviews under section 72: considerations relevant to publication
(1)
Before publishing a report under section 72, the Competition Commission
must have regard to the following considerations.
10
(2)
The first consideration is the need to exclude from publication (so far as
practicable) information the publication of which the Commission considers
would be contrary to the public interest.
(3)
The second consideration is the need to exclude from publication (so far as
practicable)—
15
(a)
commercial information the publication of which the Commission
considers would or might significantly harm the legitimate business
interests of a person to whom it relates, or
(b)
information relating to the private affairs of an individual the
publication of which the Commission considers might significantly
20
harm the individual’s interests.
(4)
The third consideration is the extent to which publication of information
mentioned in subsection (3)(a) or (b) is necessary for the purposes of the report.
75
Co-operation with the Office of Fair Trading
(1)
Monitor and the Office of Fair Trading must co-operate with each other in the
25
exercise of their respective functions under the Competition Act 1998 and the
Enterprise Act 2002.
(2)
In particular each must give the other—
(a)
such information in its possession as the other may require to enable it
to exercise those functions,
30
(b)
such other information in its possession as it considers would assist the
other in exercising those functions, and
(c)
such other assistance as the other may require to assist it in exercising
those functions.
Chapter 3
35
Designated services
76
Designation of services
(1)
The commissioner of a health care service for the purposes of the NHS may
apply to Monitor for the designation of the service for the purposes of this Part.
(2)
The commissioner may make the application only if—
40
(a)
it has consulted the relevant persons, and

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
88

(b)
it is satisfied the criterion in subsection (3) is met.
(3)
The criterion is that ceasing to provide the service concerned for the purposes
of the NHS would, in the absence of alternative arrangements for the provision
of the service for those purposes, be likely to—
(a)
have a significant adverse impact on the health of persons in need of the
5
service, or
(b)
cause a failure to prevent or ameliorate a significant adverse impact on
the health of such persons.
(4)
In determining whether that criterion is met, the commissioner must (in so far
as it would not otherwise be required to do so) have regard to—
10
(a)
the current and future need for the provision of the service for the
purposes of the NHS,
(b)
whether ceasing to provide the service for those purposes would
significantly reduce equality between those for whom the
commissioner arranges for the provision of services with respect to
15
their ability to access services provided for those purposes, and
(c)
such other matters as may be specified in guidance under section 84.
(5)
An application under this section must be accompanied by copies of the
responses the commissioner received to the consultation under subsection
(2)(a).
20
(6)
Monitor may grant an application under this section only if—
(a)
having regard to the matters in subsection (4), it is satisfied that the
criterion in subsection (3) is met, and
(b)
it is satisfied that the commissioner carried out consultation in
accordance with subsection (2)(a).
25
(7)
Monitor must give notice of its decision on an application under this section
to—
(a)
the commissioner, and
(b)
every relevant person.
(8)
Where Monitor grants the application, a notice under subsection (7) given to a
30
provider of a service for the purposes of the NHS must explain the rights
conferred by section 77.
(9)
Where Monitor refuses the application, a notice under subsection (7) given to
the commissioner or the provider of the service must—
(a)
give the reasons for the refusal, and
35
(b)
explain the rights conferred by section 78.
(10)
Where the applicant under this section is the National Health Service
Commissioning Board, the relevant persons are—
(a)
the Secretary of State,
(b)
the Care Quality Commission and its Healthwatch England committee,
40
(c)
every local authority in whose area the service is provided for the
purposes of the NHS,
(d)
every local Healthwatch organisation in whose area the service is
provided for those purposes,
(e)
every person who, in pursuance of arrangements with the Board,
45
provides the service for the purposes of the NHS, and
(f)
such other persons as the Board considers appropriate.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
89

(11)
Where the applicant under this section is a commissioning consortium, the
relevant persons are—
(a)
every local authority in whose area the service is provided for the
purposes of the NHS,
(b)
every local Healthwatch organisation in whose area the service is
5
provided for those purposes,
(c)
every person who, in pursuance of arrangements with the consortium,
provides the service for the purposes of the NHS, and
(d)
such other persons as the consortium considers appropriate.
(12)
Where the applicant under this section is the Secretary of State, or a person
10
acting on the Secretary of State’s behalf, by virtue of section 13W of the
National Health Service Act 2006, the relevant persons are—
(a)
the Healthwatch England committee of the Care Quality Commission,
(b)
every local authority,
(c)
every local Healthwatch organisation in whose area the service is
15
provided,
(d)
the National Health Service Commissioning Board, and
(e)
such other persons as the Secretary of State or person acting on the
Secretary of State’s behalf considers appropriate.
77
Complaint about grant of application for designation
20
(1)
Where an application for the designation of a service under section 76 is
granted, Monitor must, on a complaint by a provider mentioned in subsection
(2), reconsider its decision to grant the application.
(2)
The providers are—
(a)
the provider of the designated service,
25
(b)
any other provider of health care services who has sufficient interest in
the application.
(3)
For the purposes of the reconsideration, Monitor must—
(a)
where the provider mentioned in subsection (2)(a) made the complaint,
consult the commissioner who applied for the designation;
30
(b)
where a provider mentioned in subsection (2)(b) made the complaint,
consult the commissioner and the provider mentioned in subsection
(2)(a).
(4)
Monitor may remove the designation if, having regard to the matters in
subsection (4) of section 76, it is satisfied that the criterion in subsection (3) of
35
that section is not met.
(5)
If Monitor removes the designation—
(a)
an appeal by the commissioner against the decision to remove it lies to
the First-tier Tribunal, and
(b)
where a provider mentioned in subsection (2)(b) made the complaint,
40
an appeal by the provider mentioned in subsection (2)(a) against the
decision also lies to the First-tier Tribunal.
(6)
If Monitor does not remove the designation—
(a)
an appeal by the provider mentioned in subsection (2)(a) against the
decision not to remove the designation lies to the First-tier Tribunal,
45
and

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
90

(b)
where a provider mentioned in subsection (2)(b) made the complaint,
an appeal by that provider against the decision also lies to the First-tier
Tribunal.
78
Complaint about refusal of application for designation
(1)
Where an application for the designation of a service under section 76 is
5
refused, Monitor must, on a complaint by the commissioner who applied for
the designation or by the provider of the service, reconsider the application.
(2)
For the purposes of the reconsideration, Monitor must—
(a)
where the commissioner made the complaint, consult the provider;
(b)
where the provider made the complaint, consult the commissioner.
10
(3)
Monitor may grant the application if, having regard to the matters in
subsection (4) of section 76, it is satisfied that the criterion in subsection (3) of
that section is met.
(4)
If Monitor grants the application—
(a)
the service is designated and this Part applies in relation to it
15
accordingly, and
(b)
an appeal by the provider against the decision to grant the application
lies to the First-tier Tribunal.
(5)
If Monitor refuses the application, an appeal by the commissioner or the
provider against the decision to refuse the application lies to the First-tier
20
Tribunal.
79
Reviews and removals of designations
(1)
The commissioner of a designated service must, during each review period,
review the designation so as to establish whether, having regard to the matters
in subsection (4) of section 76, it is satisfied that the criterion in subsection (3)
25
of that section continues to be met.
(2)
The first review period is a period which is of such duration as Monitor may
by direction specify but which—
(a)
must not begin before the expiry of the period of one year after the date
of the notice under section 76(7), and
30
(b)
must end before the expiry of the period of ten years after that date.
(3)
Each subsequent review period is a period which is of such duration as
Monitor may by direction specify but which—
(a)
must not begin before the expiry of the period of one year after the date
on which the previous review under subsection (1) was completed, and
35
(b)
must end before the expiry of the period of ten years after that date.
(4)
For the purposes of subsections (2) and (3), Monitor may specify—
(a)
the same period in respect of all designated services, or
(b)
different periods in respect of different designated services or
designated services of different descriptions.
40
(5)
The commissioner of a designated service may (whether or not in consequence
of a review under subsection (1)) apply to Monitor for the removal of the
designation.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
91

(6)
The commissioner may make the application only if—
(a)
it has consulted the relevant persons, and
(b)
having regard to the matters in subsection (4) of section 76, it is satisfied
that the criterion in subsection (3) of that section is no longer met.
(7)
An application under subsection (5) must be accompanied by copies of the
5
responses the commissioner received to the consultation under subsection
(6)(a).
(8)
Monitor may grant an application under subsection (5) only if—
(a)
having regard to the matters in subsection (4) of section 76, it is satisfied
that the criterion in subsection (3) of that section is no longer met, and
10
(b)
it is satisfied that the commissioner carried out consultation in
accordance with subsection (6)(a).
(9)
Monitor must give notice of its decision on an application under subsection (5)
to —
(a)
the commissioner, and
15
(b)
every relevant person.
(10)
Where Monitor grants the application, a notice under subsection (9) given to a
provider of a service for the purposes of the NHS must explain the rights
conferred by section 80.
(11)
Where Monitor refuses the application, the notice under subsection (9) given
20
to the commissioner must—
(a)
give the reasons for the refusal, and
(b)
explain the rights conferred by section 81.
(12)
The relevant persons for the purposes of this section are the persons who are
the relevant persons for the purposes of section 76.
25
80
Complaint about grant of application for removal of designation
(1)
Where an application for the removal of a designation under section 79(3) is
granted, Monitor must, on a complaint by the provider of the service,
reconsider its decision to grant the application.
(2)
For the purposes of the reconsideration, Monitor must consult the
30
commissioner who applied for the removal of the designation.
(3)
Monitor may revoke the removal of the designation if, having regard to the
matters in subsection (4) of section 76, it is satisfied that the criterion in
subsection (3) of that section is met.
(4)
If Monitor revokes the removal of the designation—
35
(a)
the service is designated and this Part applies accordingly, and
(b)
an appeal by the commissioner against the decision to revoke the
removal of the designation lies to the First-tier Tribunal.
(5)
If Monitor does not revoke the removal of the designation, an appeal by the
provider against the decision not to revoke it lies to the First-tier Tribunal.
40